Campaign Against Jailing Children Planned : Lawyers Say Other Approaches Are Cheaper, Better for Juveniles and Society

Each day more than 600 children and teen-agers are jailed in California, nearly half of them in adult cells.

California leads the nation in putting youngsters under 18 behind bars built to hold adults. About 10% of Americans live in the Golden State, but more than 20% of the nearly 500,000 young people who will spend some time in an adult jail nationwide this year will be Californians, U.S. Justice Department figures show.

‘State-Sponsored Abuse’

These figures outrage Tim McFlynn and Paul Mones, two public-interest lawyers from Santa Monica, especially since studies during two decades have found that only about one in eight children incarcerated in either juvenile or adult detention is accused of a serious offense. The attorneys call jailing children “state-sponsored child abuse.”

About one in four of the 1.6 million children incarcerated last year in both adult and juvenile facilities had not committed any crime, U.S. Justice Department data shows. These youths were victims of child abuse or neglect, were mistakenly picked up or were held for what the courts call status offenses, such as running away or being sexually promiscuous. This conduct is of interest to police only when it is done by juveniles and is not a crime for adults.

Public-interest lawyers traditionally challenge situations they find offensive by identifying odious examples, filing a lawsuit and, as McFlynn put it, “getting a judge to make new law, which, unfortunately, the public tends to view as liberal law.”

McFlynn and Mones, through the Public Justice Foundation, plan a different approach.

They want to change the conventional wisdom about kids and jails--and many other issues affecting American families. “Ultimately it is public attitudes, not judges’ rulings, that make change in America,” McFlynn said.

“What we are setting out to do is to benefit our children’s children, because changing widely held attitudes is going to take years,” McFlynn, the father of five, said.

Neither man expects to stir public opinion and win reforms by showing that jailing kids makes them more likely to become criminals or by citing examples of children murdered, raped or beaten behind bars, although evidence of both abounds.

Through Their Wallets

Instead, they think the quickest way to reach people’s hearts and minds is through their wallets. And they plan to use litigation to demonstrate their contention that policies such as jailing juveniles waste millions of tax dollars.

“The Public Justice Foundation is about taxpayers’ civil rights,” McFlynn said. “The hidden victims of ineffective programs are the taxpayers who year in and year out are forced to pay for programs that not only do not work but make the problems worse.

“Jailing kids costs much, much more than other alternatives,” McFlynn, the foundation executive director, added.

“The fact is that what we do now doesn’t work and what does work is cheaper, as everybody who has looked at the issue has found. But the public doesn’t know that and the system therefore is not under any pressure to change. The people in the system often don’t know, either, about alternatives.

“We think showing that there is a better way and that the better way is cheaper will bring about broad changes in social attitudes,” McFlynn said.

Jailing a juvenile currently costs $24 per day, according to a national study by the American Justice Institute, while sending youngsters to a small group home with trained supervision, but no bars, costs $17 per day. Sending youngsters home but checking up on them regularly costs $14 per day, the institute found.

“On a per-day basis, non-penal care can cost more than jail if you have extensive services for children,” said Mones, the foundation legal director and a veteran children’s advocate. “But the overall, long-term costs are less because the recidivism rate for non-penal approaches is much, much lower. Once you put kids behind bars the likelihood that they will get into serious trouble, or into more trouble, increases dramatically.”

Both men believe public attitudes about youths and jailing will change once the costs seep into the public consciousness.

McFlynn learned how money motivates after he filed a lawsuit in 1975 on behalf of Robert Sundance, a Sioux Indian. The Los Angeles police arrested Sundance for public drunkenness so often that he averaged 226 days per year in jail in the four years before McFlynn took up his case.

Sundance sent a handwritten petition to federal Judge Warren J. Ferguson, who passed it on to the Center for Law in the Public Interest, where McFlynn worked. McFlynn said the issue of whether police could legally arrest drunks did not mesh with the center’s interests and he was asked to write a polite letter declining to act on the petition.

McFlynn took the petition to the beach on Lincoln’s birthday in 1975, and he read it. “I knew that petition was going to change my life,” McFlynn said, describing the document as eloquent and moving in its protest against jailing public drunks instead of treating them.

At the time, police in Los Angeles, as in most large cities, put public drunks in a cell to sober up, then released them without prosecution in 99% of the cases.

City officials initially argued that changing the system would raise costs by more than $1 million annually because they examined reform in terms of retaining the arrest practices but adding physicians to examine drunks before booking.

McFlynn argued that arresting people for alcoholism, which is widely accepted to be a disease, did violence to the Constitution and did nothing to help the alcoholics.

A 1976 study, financed by the Ahmanson Foundation, documented that handling public inebriates as criminals cost $232 per arrest compared to $83 for channeling them into detoxification. The study said jailing cost Los Angeles taxpayers $7.5 million more each year than the alternative McFlynn sought.

A Cheaper Way

McFlynn said there was little public concern about the humanitarian and civil rights issues in Sundance and many people considered public drunkenness an insoluble problem, anyway. What people cared about, and what got action, he said, was showing that there was a cheaper way and that it worked better.

“On this issue--and others the Public Justice Foundation will get involved with affecting American families--there is a consensus among those who have studied the issue about what to do, and there are civilized, cost-effective alternatives,” McFlynn said.

“The real problem,” Mones said, “is ignorance. . . .”

“And indifference and inertia,” McFlynn added.

Other issues the pair want to pursue include:

--Placing warning labels on alcoholic beverages, an idea patterned after the warnings on cigarette packages, that would refer to birth defects associated with excessive drinking by pregnant women. McFlynn, who, like Mones, drinks wine, beer and hard liquor, called alcohol “a real monster in our society,” costing billions in lost productive time, fueling domestic violence and shortening lives.

--Expanding day care to reduce juvenile delinquency and crime by supervising the after-school hours of youths whose parent or parents work.

--Improving foster care so children are separated from their parents for the shortest time possible and so children are not abused by foster parents.

In each of these issues the two men believe workable alternatives to current policies exist and have wide support among those who have studied the issues, but no effective force is pressing for widespread adoption of improvements.

The American Bar Assn., the National Sheriffs Assn., the U.S. Conference of Mayors, the League of Cities and the Children’s Defense Fund have all condemned jailing of children. Studies for the American Bar Assn. and the Children’s Defense Fund have documented cases of children being placed in cells with adults suspected of violent crimes and of children being beaten, raped and, in one case, shot with a gun and blinded.

“Many runaways are girls and boys escaping physical and sexual abuse at home, but the system turns these victims into the accused,” Mones, the foundation legal director, said.

A False Impression

“People can’t be against jailing unless they are educated about the problem,” said Mones, who contends that the public is under the false impression that most incarcerated youths are gang members suspected of serious crimes.

Mones said that youths suspected of serious crimes such as murder, robbery and rape and who pose a threat to public safety should be incarcerated in juvenile facilities after a judicial hearing, but other youths should be sent home or placed in non-penal custody.

In an effort to change the conventional wisdom about youths and jailing, the Public Justice Foundation, which McFlynn founded in 1982, and the Youth Law Center in San Francisco plan to file four lawsuits next week aimed at stopping the incarceration of California children in adult jails. The plaintiffs will include city and county governments and two major police agencies in metropolitan Los Angeles, Mones said.

The lawsuits are not the focus of the foundation’s strategy, though, both men said. While they will be vigorously pursued, McFlynn said the litigation strategy is designed to create a forum that will bring the issues of children in adult jails into public debate. Filing multiple lawsuits, Mones added, should get the attention of both public officials and news organizations.

Another part of the Public Justice Foundation is making friends in Hollywood so that movies and television shows will dramatize the issues.

McFlynn and Mones are advising a variety of production companies about TV shows, feature films and documentaries.

“More than any other institution, the media shape the attitudes of people,” McFlynn said, explaining the emphasis on news coverage and dramatizations.

The two lawyers’ influence in Hollywood is also evident in a benefit dinner being held for the foundation Monday night in Venice. Producers Tony Bill and David Field and MCA Records President Irving Azoff, all foundation board members, will host the benefit at Bill’s chic Venice restaurant, 72 Market Street.

The Public Justice Foundation has some other influential supporters, too. They include state Atty. Gen. John K. Van de Kamp, U.S. District Judge Harry L. Hupp (who tried the Sundance case) and the Atlantic Richfield Foundation.

Shirley Hufstedler, the former federal judge who was Jimmy Carter’s secretary of education, said that “everyone who has looked at it agrees that jailing children is cruel, appalling and is terribly wasteful of tax dollars . . . but no one agency has responsibility for changing the system, so the problems just get pushed around from one agency to another.

“So long as we have abused kids, runaway kids, troubled kids, we have to have someplace to put them,” she said, “but the people who have to deal with them are faced with the position of having absolutely no place else to put them many times but in jail.

“What we need is to deliberately build a system that works,” Hufstedler added.

McFlynn said the Public Justice Foundation “is not a law firm. We will not be hiring a lot of lawyers. We have a staff of five.”

He also characterized the legal theory allowing public-interest lawyers to collect fees for cases they win as “a slender reed” on which to finance an organization seeking changes in public policy.

Doctrine in Danger

“That doctrine could be wiped out in a minute,” McFlynn said, noting that President Reagan will have appointed more than half the sitting federal judges by the time his second term ends and that many of the judges named by Reagan have expressed hostility to the notion of public-interest lawsuits.

Before Flynn married Donna McGuirk and they merged their names, McFlynn used to be known as Tim Flynn.

He was a hard-charging Los Angeles County deputy district attorney who successfully prosecuted local officials for corruption and misconduct. He said he resigned in 1973 because he was not given a free hand to prosecute two Los Angeles police officers who shot an innocent teen-age boy to death in his bed. The officers, searching for a robbery suspect, had gone to the wrong house.

Later, McFlynn and attorney A. Thomas Hunt brought a successful suit on behalf of Fanchon Blake, a woman police sergeant, to stop sexist hiring and promotion practices at the Los Angeles Police Department.

Help on Skid Row

After winning the Sundance case, McFlynn, 43, helped organize the Weingart Center on Skid Row as one of the alternative programs for public inebriates, many of whom congregate with little hope or help on the row and other city streets.

Currently, he is involved in lawsuits to stop prosecution of the mentally ill for minor offenses and instead have them sent to mental health agencies, to stop “mercy bookings” of the mentally ill who have no housing, to speed pretrial release of persons suspected of minor offenses who cannot afford bail and to improve police warrant checking procedures to end mistaken identity and other wrongful arrests.

Mones, 33, founded the first legal advocacy program for Appalachian children, Juvenile Advocates in West Virginia, five years ago.

In 1977, nearly 1,800 children were placed in adult jails and lockups in that state. By 1982, after Mones started filing lawsuits challenging the practice, only 87 juveniles were held in county jails.

Advocate for Children

Mones said he represented nearly 500 children each year and visited every criminal justice facility in West Virginia that held children.

His clients included a 12-year-old boy whose father left him asleep in the back seat of his parked car at 1 a.m. A police officer found the boy and called the local prosecutor for advice. The prosecutor stirred from his sleep just long enough to recommend that the officer “just put him in the county jail until morning,” Mones testified before a U.S. Senate Judiciary Committee subcommittee on juvenile justice.

Such attitudes, the two men contend, are common in this state and are at the core of what they want to stop when they launch the California Campaign Against Jailing Children next week.