Part of juvenile system quashed

Judge: Classification of sex offenders unfair

Deborah Yetter, courier-journal.com, September 6, 2007

A Franklin Circuit judge has struck down Kentucky's system for classifying and housing juveniles who commit sex offenses, finding it deprives the youths of proper treatment.

In a ruling issued yesterday, Judge Phillip Shepherd found the state Juvenile Justice Department has exceeded its authority in creating a system where youths who commit even minor offenses are required to undergo long-term treatment at residential centers.

In some cases, youths with mental retardation are being forced to participate in programs even though it is impossible for them to benefit, Shepherd wrote.

The case was brought on behalf of five boys with mental retardation, but Shepherd's ruling applies to any youth in the system whose offense isn't serious enough to require long-term, residential treatment.

The judge ordered the department to stop using the placement system and to relocate all youths who are placed inappropriately within 30 days.

Juvenile Justice Commissioner Bridget Skaggs Brown declined to comment on the ruling yesterday but issued a statement through spokesman John Hodgkin.

"The department disagrees with the judge's ruling," the statement said. "We're still reviewing his ruling and exploring our options."

But the ruling was welcomed by public defenders who filed a lawsuit challenging the system and by a Western Kentucky judge who said the practice violates the spirit of the state's juvenile law, which calls for treating and rehabilitating children at home or as close to home as possible.

"What they are doing is not what's envisioned by the juvenile code," said Christian County District Judge James G. Adams, a former juvenile prosecutor who helped write the updated juvenile law in 1987.

Gail Robinson, an assistant public advocate who filed the lawsuit, said her clients with mental disabilities are extremely frustrated by demands of the program that include discussions, essays, keeping journals and analyzing their behavior. She said she represents one youth with an IQ of 40 -- well below 70, the level at which a person is considered to have mental retardation.

"They try really hard but they just aren't capable," she said. "None of the kids have ever graduated from this program."

Robinson said she isn't sure how many youths would be affected by Shepherd's ruling but said it would include many youths without mental disabilities who simply have committed minor offenses.

"There are a number of kids in similar situations," she said.

Shepherd found juvenile justice officials have begun classifying youths who commit even minor sex offenses, such as fondling, as "juvenile sex offenders," a category under law generally reserved for older children who commit serious offenses such as rape or sodomy.

That classification allows the department to send the youths to a secure facility where they are required to enter sex offender treatment programs for up to three years.

But the practice exceeds the legal definition of what constitutes a juvenile sex offender, Shepherd said. Juvenile justice officials also made no exceptions for youths with mental retardation -- even though the law says they may not be classified as juvenile sex offenders, the judge said.

In addition, the department is usurping the authority of judges who have discretion in many cases as to whether to classify a child as a juvenile sex offender, Shepherd ruled.

The department's system has led to some absurd outcomes, said Adams, the Christian County judge. He recalled one case where a boy about 12 had admitted to fondling another child, which is a misdemeanor. But juvenile justice officials wanted to classify the boy as a juvenile sex offender and send him away for a lengthy stay at a treatment center.

Adams said he refused to commit the child to the department and instead put him on probation in the care of a relative where he is getting treatment and has "done beautifully." "To commit that kid would have done more damage than it would have done good," Adams said.

Shepherd's ruling marks the second time in two years a judge has struck down the juvenile justice department's system of classifying and placing youths in its 12 residential centers.

In 2005, former Franklin Circuit Judge William L. Graham ruled the state was sending too many youths to juvenile centers who should have been placed at home or in community settings such as foster care or group homes.

The department then revised its system. Shepherd's ruling yesterday dealt only with rules enacted last year for placing youths who commit sex offenses.

But public defenders have mounted a broader challenge against the department's entire system of classifying and housing all youths.

That lawsuit, filed last month in Frankfort, argues officials have continued to ignore the law that requires them to try to treat children close to home. That case is also pending before Shepherd.

Adams said he thinks yesterday's ruling sets the stage for a broader ruling against the department in the second suit because the same argument applies in both cases.

Similar problems in the past led to a federal civil-rights investigation of Kentucky's juvenile justice system and a federal consent decree that brought significant reforms in the 1990s, Adams said.

"We as a state do not need to be back in that situation," he said.