A boy and a girl and the morality police

When the legislature passed and the governor signed legislation to create a new crime of underage teen "sexting," the ACLU of Pennsylvania and its allies like the Juvenile Law Center and the Pennsylvania Psychiatric Society warned that a teen couple that privately sends sexually suggestive photos to each other would get caught up in the new law and that a teen's bedroom is no place for the government. Supporters insisted to me that those kinds of situations would never make it to a district attorney.

We were right, and they were wrong. In Westmoreland County, just a week after the new law went into effect, a 13-year-old girl and a 14-year-old boy have been cited. Their "crime"? According to press reports, the girl sent the boy a topless picture of herself. He looked at it, because he's a 14-year-old boy and that's what they do, and then deleted it.

Here's the money quote, from Westmoreland County District Attorney John Peck, as reported by the Pittsburgh Tribune Review.

“I think a summary offense is more appropriate in most incidents,” Peck said.

This DA has such a lack of perspective, he's so intertwined in government power and thinks that being cited for criminal activity is no big deal if it's for a lesser offense, that he can't see the damage that can be done in citing a 13-year-old girl, whose picture has now been seen by numerous adults, and a 14-year-old boy for the "crime" of exploring their sexuality, something that teenagers have done since our species evolved.

And, putting the juvenile justice piece aside, there are free speech questions here, too. Our legal director tells me that we will look to challenge this law in court if this is how it is going to be applied.

Sexting by minor teenagers is risky behavior. It's behavior best addressed by parents and educators, not the government. But people in government don't get that. They're too busy playing the morality police.

Aside: The press dropped the ball here, too. No court in Pennsylvania has upheld a felony charge in a sexting situation, but all three outlets linked above- the Trib, the AP, and WTAE-TV-  said that this would have previously been a felony.

Protection by prosecution?

On Friday, the Pittsburgh Post Gazette published a letter to the editor co-signed by the Juvenile Law Center, the PA Psychiatric Society, and the ACLU of PA. The letter asks a basic question: How does prosecuting kids for sexting protect them? Protection by prosecution?

Here's the letter:

Educate teens

House Bill 815, which proposes to make any teen sexting a criminal offense, was passed by the state House of Representatives on May 23. HB 815 is being promoted as a measure to protect teens from possible exploitation -- through arrest, humiliation and saddling children with criminal records. Protection through prosecution?

This bill would make it possible for district attorneys to prosecute any teen who sends or receives any nude or partially nude photo -- even when a photo has only been shared consensually between two individuals.

Lawmakers should rightfully worry about protecting children from individuals who intend to harm by disseminating photos without consent or those who try to coerce others into taking and sending photos, including sexual predators or bullies -- something Sen. Stewart Greenleaf's SB 850 addresses more appropriately.

HB 815 fails to make the important distinction between consensual activity and cyberbullying -- two very different actions. It drags teens into the criminal justice system even when there are no victims, and creates a barrier to reporting abuse. If HB 815 passes, even the victim can be prosecuted. Kids who are coerced into sending photos are less likely to report the crime when they themselves may be prosecuted.

Teenagers make foolish mistakes. Does that make them criminals? We need to educate teens about the dangers of risky behaviors like sexting, not prosecute them. Criminalizing consensual sexting does the exact opposite of what it was intended to do. It creates victims. Let's focus on protecting children from predators, not district attorneys.

MARSHA L. LEVICK
Deputy Director and Chief Counsel
Juvenile Law Center
Philadelphia

DEBORAH SHOEMAKER
Executive Director
Pennsylvania Psychiatric Society
Harrisburg

The letter also was signed by Andy Hoover, legislative director, American Civil Liberties Union of Pennsylvania.

This week at the state capitol

Day One of this session week at the state capitol has passed, but the real fun begins tomorrow.

On Tuesday at 10am, the House Judiciary Committee will consider House Bill 815, to create a new crime of "sexting." This bill creates criminals out of dumb teenagers being dumb teenagers. In the shadow of the Luzerne County juvenile court scandal, one would assume that the legislature would tread lightly when it comes to criminalizing our kids, but this bill is like killing a gnat with a sledgehammer.

Fortunately, there is an alternative proposal in the Senate, SB 850, which criminalizes sexting when one person harms another. SB 850 is already out of the Senate Judiciary Committee. The ACLU of PA doesn't support SB 850...but we also don't oppose it. We oppose HB 815, and the ACLU-PA memo submitted to the House Judiciary Committee is available at our legislative webpage.

It must be the week for dueling House-Senate proposals on civil liberties. On Wednesday, the Senate Public Health and Welfare Committee will consider Senate Bill 732, which makes alterations to the inspection process for abortion clinics. SB 732 has some minor problems, including patient and employee privacy issues, but we're putting all of our energy into stopping HB 574, which would impose a complete rewrite of the legal playing field for clinics, potentially putting them out of business. In fact, we just posted this action alert against HB 574. Please take action!

Our friends in the immigration advocacy community will hold a press conference to answer some of the anti-immigrant vitriol out there on Wednesday. And SB 1, the school vouchers bill, continues to hang out there after being re-referred to the Senate Education Committee. Senator Piccola says that he has an agreement with the Corbett administration on revisions, but no one knows if he has the votes to pass the bill in the Senate. Time will tell.

Mom publicly shares her pain in support of juvenile justice reform

Legislative committee meetings are usually pretty dry affairs. Legislators and staffers pour through the details of bills while wonkish advocates look on.

But that was not the case in the PA Senate Judiciary Committee on Tuesday. The committee considered- and ultimately passed- a package of bills to reform Pennsylvania's juvenile justice system in response to the court scandal in Luzerne County, where two judges took kickbacks from a private detention corporation in exchange for sending more kids to the facilities.

There in support of the legislation was Sandy Fonzo. Ms. Fonzo became the face of the Luzerne scandal when she publicly lashed out at Judge Mark Ciavarella in February. In a brief statement, Ms. Fonzo told the committee the story of her son, Ed Kenzakoski. Ed was an all-star wrestler with high hopes when he was arrested for drug paraphernalia. His family thought he would get a sentence of community service, but instead Ciavarella sentenced Ed first to 30 days in a facility and then to several months at a boot camp more than an hour's drive from his home. Ms. Fonzo said that he returned an angry, depressed young man, a far cry from the happy teen Ed had been before he encountered Ciavarella. Last year, at the age of 23, Ed shot himself to death.

As Ms. Fonzo told her story at Tuesday's committee meeting, I could hear sniffles around me and noticed several people wiping their cheeks. This was not just another day at the legislature.

After Ms. Fonzo finished telling her story, the committee chairman, Senator Stewart Greenleaf, told her that her loss would not go unnoticed at the legislature.

The ACLU of PA supports SB 815, prohibiting parents and guardians from waiving counsel for juveniles, and SB 817, prohibiting the use of shackles on juveniles in court, and we look forward to helping this legislation find its way to the governor.

Video of Ms. Fonzo's statement and the statements of Senator Lisa Baker (R-Luzerne) and John Yudichak (D-Luzerne) is available at the PA Senate Republicans' website. You won't regret taking a few minutes to watch it. You can also watch an interview from the Today show with Sandy Fonzo and her lawyer and friend of the ACLU of PA Marsha Levick of the Juvenile Law Center.



Please note that by playing this clip You Tube and Google will place a long-term cookie on your computer. Please see YouTube's privacy statement on their website and Google's privacy statement on theirs to learn more. To view the ACLU of PA's privacy statement, click here.

Next week at the state capitol: The one about abortion

Photo courtesy of the ACLU and yesterday's rally for women's health in Washington.

Well, here we go. The abortion wars aren't just for DC anymore. Next week reproductive rights take center stage at the state capitol.

On Monday, the House Health Committee will consider House Bill 574. This bill will require abortion clinics to follow the same regulations as ambulatory surgical facilities, which are clinics where patients can go for outpatient procedures. Why is that an issue? If abortion clinics had to follow these requirements, they would be forced to alter their buildings and their staffing in ways that would cost them hundreds of thousands of dollars. As just two of numerous examples, abortion clinics would have to increase the size of their operating rooms and would have to hire a full-time nurse. (Right now, clinics have a nurse on duty on days that they perform abortions but not on days that they are doing routine OB-GYN and family planning services.)

In reality, HB 574 would close most and maybe all of the freestanding abortion clinics in Pennsylvania. As it stands now, abortion services are only available in a small number of counties. One of our allies said recently that HB 574 would be the greatest rollback of reproductive healthcare in Pennsylvania since the Roe decision. And that's saying something since we are the state with the Abortion Control Act and the state of Planned Parenthood of Southeastern PA v. Casey.

Our friends at Pennsylvania NOW have created a petition at change.org that will be sent to members of the House Health Committee.

On Tuesday, we get a break, but on Wednesday, it's right back at it. The Senate Public Health and Welfare Committee will hold a hearing on numerous pieces of legislation that have been introduced in the Senate in response to the indictment of Dr. Kermit Gosnell in Philadelphia. The good news is that none of those bills move abortion clinics under the ASF standards like HB 574. The bad news is that at least two of the bills have some privacy issues, including exposing patient records- with names- to Department of Health inspectors, but we are hopeful that we can work through those issues with the Senate. The most important thing the Senate can do is reject the ASF provisions of HB 574, and so far, senators are doing that.

If you're interested in attending or watching on PCN (on cable or online), that hearing is at 2pm on Wednesday in Hearing Room 1 of the North Office Building.

In other news, we expect that the Senate Appropriations Committee will vote on SB 1, the taxpayer-funded private school vouchers bill. I know I said that last week, but this week I really mean it.

Also, there is some good legislation moving. On Tuesday, the Senate Judiciary Committee will consider several bills that stem from the Luzerne County juvenile court scandal. SB 815 prohibits juveniles from waiving counsel, which was a huge problem in Luzerne. SB 817 prohibits the shackling of juveniles in court.

Finally, the Senate Judiciary Committee will also consider SB 850, which addresses sexting by minors. We have no position on this bill, and that's significant because the bill does not have the problems of House Bill 815, which we oppose. SB 850 creates a misdemeanor offense when one minor harms another via cyberbullying, including sexting. HB 815, on the other hand, has problems because it over-criminalizes kids and has First Amendment issues by criminalizing images that involve nudity (and not sex acts) and that are consensual. We're grateful that Senator Greenleaf has introduced and is moving SB 850 because it provides a counter to what the House has been trying to do for the last year.

Another action-packed week is shaping up at the state capitol.

Update from last week: SB 260 passed out of the Senate Public Health and Welfare Committee. This bill removes the current requirement that patients receive pre-test counseling for HIV tests and allows doctors to require patients to opt-out of HIV testing, rather than opting in via written informed consent. Why it's a good idea to take information away from patients is beyond me.

SB 637 passed out of the Senate State Government. This bill requires state contractors and sub-contractors to use the federal E-Verify program, an online database program with more than 500 million records of personal information on us. We oppose.

HB 934, the voter ID bill, was debated in the House State Government Committee but not voted yet. We expect a committee vote soon on this awful bill.

We'll keep working on these bills, of course. But as I told an ally recently, what do we do with legislators who refuse to listen?

Next week at the state capitol

Next week the Pennsylvania General Assembly returns to session after a three week break for budget hearings. Some people complain that we have a do-nothing legislature. And they say it like that's a bad thing.

Here's what's on tap. Our analysis, memos, etc. on these issues are available on our webpage for the current session, unless otherwise noted.

FLOOR VOTE! Death penalty expansion (HB 317): HB 317 adds two new aggravating circumstances for death penalty cases, bringing the total aggravating circumstances that allow a prosecutor to pursue a death sentence to an even 20. We oppose. I missed the memo that the death penalty has been a success. HB 317 is currently on the House calendar for third consideration.

Taxpayer-funded private school vouchers (SB 1): We expect this bill will be voted out of the Senate Appropriations Committee (with a $1 billion price tag?) sometime next week. It will get a vote on the Senate floor soon thereafter, although that may happen the week of Apil 11. We oppose.

E-Verify for state contractors (SB 637): The Senate State Government Committee is scheduled to consider this bill to mandate state contractors to use the federal E-Verify database program on Wednesday. Never mind that the Court of Appeals for the Third Circuit ruled in the Hazleton case that local governments can't do that. We want Pennsylvanians to make donations to the ACLU, but we want those to be private donations, not out of the general fund after we kick the commonwealth's a** in court. We oppose.

We don't have any published documents on E-Verify for this session, but if you're interested in more info, check out our webpage from the 2009-10 session.

Elimination of pre-HIV-test counseling and informed consent (SB 260): The Senate Public Health and Welfare Committee will consider this bill on Wednesday. Under current law, a person getting an HIV test receives pre-test counseling and must sign a form, aka informed consent, to get the test. SB 260 wipes out the counseling requirement and requires patients to opt out of the test, rather than opting in. That's a violation! Again, no new info posted yet on this one, but our 09-10 session page has some commentary on why this is wrong. Also, national ACLU's HIV/AIDS project has a lot of info on why patient privacy in HIV testing must be protected.

Voter suppression (HB 934): The House State Government Committee will hold an informational meeting on Wednesday on HB 934, a bill to suppress votes by requiring photo ID at the polls. Members of the committee will debate the bill but not vote on it until a later meeting that is yet unscheduled. You guessed it....we oppose.

Did I forget anything? Oh, in what is sure to provide plenty of entertainment, representatives from the Transportation Safety Administration (TSA) will meet with the House State Government Committee on Monday to discuss a resolution protesting TSA's extreme search tactics and a bill to create a new state crime of touching a person's genitals during a search.

Finally, Thursday is going to be action-packed for me. In the morning, I'll be testifying at the state capitol before the House Democratic Policy Committee on school vouchers. Then in the evening, it's off to Penn State for a panel discussion on sexting at the law school with Rep. Seth Grove (R-York County), Dauphin County District Attorney Ed Marsico, and Riya Shah, a staff attorney at Juvenile Law Center. It's at 6pm on Thursday in the auditorium of the Lewis Katz Law Building. If you're in the area, come by and say, "Hola!"

The problem with forcing schools to call the police

I realized after writing Friday's post that each of those issues could be a post all to themselves and that you, dear reader, would be best served by further fleshing out the issues, especially the police in schools bill (SB 56) and the sexting bill (HB 2189). (The gay foster kids issue is pretty clear. It's horrendous what the legislature has done on that issue.)

SB 56 mandates reporting of criminal offenses on campus by school administrators to both local police and to the state Department of Education's Office of Safe Schools. The primary sponsor has a school in his district that was calling the police for student incidents but not reporting those incidents to the Office of Safe Schools. By not reporting to the office, the school avoided being tagged as an unsafe school.

So it makes sense to put some guidelines in place to be sure that schools are not ducking the Office of Safe Schools. And, of course, all of us want some incidents reported to the police. If a homicide occurs in a school, I'm pretty sure that everyone wants the school to call the cops.

But once you get past the obvious, things get murkier the further you go down the list of offenses. Here's an example that is nearly identical to a real incident. Say a teacher who doesn't understand autism touches a kid who is on the spectrum. Kids with autism don't like to be touched. The kid reacts by kicking the teacher in the leg. The act itself is simple assault, but because the victim is a school employee, it's aggravated assault.

Under SB 56, school administrators have discretion on whether or not to call the police on simple assault but must call the police for aggravated assault, under threat of a fine of several thousand dollars. So if this bill becomes law, that kid gets hauled off by the police, and it doesn't matter if he's 7 or 17. Think for a moment about just how traumatic it would be for a child, any child, to be taken from school in handcuffs.

With administrators having the discretion to report simple assault but being mandated to call the police for aggravated assault, school administrators will be left to determine where particular offenses fit in the criminal code. Third degree institutional vandalism must be reported to the police, under SB 56, but lesser forms of vandalism do not. If you're an administrator and you have a $2500 fine hanging over your head, you're probably going to err on the side of caution and report all forms of vandalism and all forms of assault. Why risk money coming out of your pocket or your school district's pocket?

A problem already exists with schools relying too heavily on police back up to deal with discipline problems. In the 2006-07 school year, law enforcement in Pennsylvania found just 60 percent of incidents reported by schools to be arrest worthy. In other words, police considered 40 percent of the school-based complaints they received to be unworthy of their attention. Schools are calling the police too much, and that's without SB 56 in law.

Ironically, one of the issues coming out of the inter-branch commission on juvenile justice has been that there were too many school-based calls going into police stations in Luzerne County. The excessive use of law enforcement by school officials funneled kids into the juvenile justice system, where two Luzerne judges allegedly took bribes to send kids to detention facilities.

We don't know the future of this legislation. It passed the Senate last year. It has not yet been taken up by the House, but it's possible that there will be a massive (omnibus) bill related to school issues. SB 56 could be in it. It's hard to imagine the Pennsylvania General Assembly doing any worse by our kids.

Andy in Harrisburg

Keep Pennsylvania Kids in School

Last week, the Dignity in Schools Campaign (DSC) released its National Resolution for Ending School Pushouts. What is "school pushout," and why is it a national problem? Many students are pushed out of schools by harsh disciplinary practices that favor exclusionary strategies like the over-use of suspension and expulsion, and create unwelcoming environments for students. When young people — often those who need the most support — are pushed out of school, they essentially lose their right to an education.

The resolution is a call to action for our school systems. It is an attempt to reframe the debate about school climate and discipline from one that favors the punishment and exclusion of children to one based on human rights.

I don't normally get too excited by bold statements about social problems. This one feels different, though. The National Resolution for Ending School Pushout is not an empty statement, but a call for a real change in our schools. The resolution goes beyond decrying the trend toward pushout to propose positive steps that can be taken to help make it possible for young people to remain on track to complete their education.

For those of us deeply engaged in work in Pennsylvania's schools, the resolution could not be released at a more critical moment. In October of 2008, the school district of Philadelphia adopted a "zero tolerance" policy under which expulsions have escalated dramatically.

Across the state, approximately 30,000 students are placed in more than 600 "alternative education for disruptive youth" programs each year. Relatively little is known about these individual programs and the experiences of the students in them.

In Philadelphia, many students are transferred to alternative schools without an opportunity to contest the charges against them. Many wait for up to six months for a decision to be made about their future. Some are ultimately exonerated, but by that time, they have been out of their regular schools for so long that catching up is difficult if not impossible. In the 2008-09 school year, 193 expulsion hearings were held, up from zero in the previous year; 166 students were ultimately expelled by the School Reform Commission (our school board). The current school year began with 90 students in limbo awaiting hearings from last school year.

The resolution calls for a different approach to creating peaceful and respectful environment in schools. It urges schools to adopt proven alternative disciplinary approaches such as positive behavior supports and restorative practices. Furthermore, it urges that the rights of students, parents and guardians be treated with respect in all school processes.

Finally, the resolution calls on public officials and school administrators to provide teachers and school staff with the support needed to bring about these changes.

One thing is certain: keeping young people engaged with school is the best thing we as a society can do.


Harold in Philadelphia

In Focus: The School to Prison Pipeline

The second installment in the Greater Pittsburgh Chapter’s Juvenile Justice Series Discussion focused on the School to Prison Pipeline (STPP).

The School to Prison Pipeline refers to the policies and practices that push our nation’s schoolchildren, especially our most at-risk children, out of classrooms and into the juvenile and criminal justice system. The most important aspect is the prioritization of incarceration over education.

On October 8th, Jasiri X led the discussion at the Amani International Coffee House on the North Side. Jasiri X, an activist and entrepreneur, focuses his attention and celebrity on local, national, and international issues. Weekly, he reports news lyrically over hip hop beats streaming online. Jasiri X is also a founding member of One HOOD, a group comprised of strong black men determined to heal the wounds of the Pittsburgh community through a proactive approach.

The discussion evolved around the reasons why the STPP exists and how it effects the most at-risk youth.

Five main factors contributing to the STPP:

• Failing Public Schools: Most students’ journeys along the pipeline begin in public schools with inadequate resources-mostly counseling services and special education services that lock students into poor educational environments with no outlets.
• Zero-Tolerance and Other School Discipline: These polices automatically impose severe punishment regardless of circumstance. As harsh penalties for minor misbehavior become more pervasive, schools increasingly ignore or bypass due process protections for suspensions and expulsions.
• Policing in School Hallways: Trends toward police acting as disciplinarians and away from teachers and administrators expose students to a rise in school-based arrests, which are the quickest route from the schoolhouse to the jailhouse. School-based arrests exemplify the most apparent exhibit of the criminalization of schoolchildren.
• Disciplinary Alternative Schools: Many of these institutions are run by for-profit entrepreneurs, who are not accountable for educational standards. When students leave these facilities and reenter their schools, they are often unprepared for their coursework and permanently exposed to an educational disadvantage.
• Court Involvement and Juvenile Detention: Many youth involved in the juvenile system are denied procedural protections in the courts. Further, their probation conditions are not fitting for the crimes committed. Violating such conditions forces these children into juvenile detention facilities, which provide little to no educational services.

It should be noted that students of color are far more likely to travel through the STPP than their white counterparts for the same conduct. Those with disabilities are also at higher risk because schools do not provide adequate diagnoses or services. Most students who become a part of the STPP never graduate high school.

For more information regarding future Greater Pittsburgh Chapter discussion series, visit http://www.aclupa.org/chapters/greaterpittsburgh/discussionseries20092010.htm.

Kristine in Pittsburgh

Juvenile Injustice

Meet Qu’eed Batts. Batts was a Blood street gang member in 2006 when he was arrested, tried as an adult, and convicted of committing murder when he was just 14.

Just over a month ago, the Pennsylvania Supreme Court granted review to Batts’ case on the juvenile life without parole (JLWOP) issue. At 17 he has been granted a petition to appeal, but his case won’t be seen until after the US Supreme Court decides on two Florida JLWOP cases, which take up the issue of whether or not sentencing children to life without the possibility of parole violates the Eighth Amendment's ban on cruel and unusual punishment.

Batts' case is just one of many juvenile cases that make juvenile justice one of the hottest topics in civil liberties, which is why the Greater Pittsburgh Chapter's Public Education Committee devoted an entire series to bringing these issues to the community.

The series, which began on September 10th with a discussion on the problem of juvenile life sentencing was led by Martha Conley, ACLU of PA Greater Pittsburgh board member, chair of the Pittsburgh chapter of Pennsylvanians for Alternatives to the Death Penalty, and associate producer of the film Lost in the Hype.

Pennsylvania has convicted more JLWOP than any other state in the US. Currently, PA host 444 prisoners who are serving life without parole for crimes they committed as juveniles. Of the 2,574 serving in 39 states throughout the US, 60% were first time offenders, according to a 2005 study by Human Rights Watch and Amnesty International.

Two of the main reasons PA disproportionately houses more JLWOP inmates are:

1. A 1995 law that requires juveniles charged of serious crimes to bypass the juvenile courts and first be seen in adult courts. Reasoning being: “adult crimes deserve adult time”; however a growing body of medical research shows incomplete brain development, especially in the areas controlling impulse, planning, judgment, and foresight of consequences, in youth and young adults up to age 21.
2. Unlike other states, only the governor may grant clemency to anyone with the life without parole sentence, including children.

As for the public’s view, a February 2007 National Counsel on Crime and Delinquency study found that 89% of respondents believed rehabilitation services and treatment can prevent youth who have committed crimes from committing future crime. For more information regarding future Greater Pittsburgh Chapter discussion series, visit http://www.aclupa.org/chapters/greaterpittsburgh/discussionseries20092010.htm.

More information on juvenile life sentencing can be found here or here.


Kristine in Pittsburgh