Rutgers Law Clinical Faculty Achieve Legislative Victory on Juvenile Incarceration

A new law eliminates several harsh detention practices

When the New Jersey state legislature passed, and Governor Christie signed into law, a bill that reforms the way juveniles are treated in the state’s justice system, some of the loudest applause came from Rutgers Law School – in particular three faculty members who had worked on the issue for years and were instrumental in getting the law passed.

That involvement began in 2008 when Professors Laura Cohen of Rutgers School of Law-Newark and Sandra Simkins of Rutgers School of Law-Camden received a MacArthur Foundation grant to provide legal representation to youth incarcerated in New Jersey’s long-term juvenile facilities. 

Cohen and Simkins, both experienced juvenile defense attorneys, found that youthful offenders were often placed in solitary confinement for misbehavior no more serious than foul language directed at corrections officers – a harsh punishment for actions that were not dangerous. The Rutgers professors felt the confinement was doing far more harm to the youths than good.

They also saw that youths were commonly transferred, without even receiving a hearing, from juvenile detention – a system designed to teach and rehabilitate those who are housed there – to punitive adult prisons, where life among hardened criminals can snuff out any chance many young offenders have to turn their lives around. “When a young person is prosecuted in juvenile court and is placed with the state,” says Cohen, “the primary purpose is to provide that youth with rehabilitative services. But in adult prisons, brutality reigns, and they are given no opportunity to develop skills that will allow them to come back and lead productive lives. Incarceration makes them worse.”

Cohen says litigation that she and Simkins led, challenging the way juveniles are transferred to adult prison with no access to legal representation, may be Rutgers’ most significant contribution to changing the system for the better. Cohen and Simkins, and the student legal clinics they run on their respective campuses, took on a number of the young offenders’ cases – often referred to the clinics by county public defenders’ offices. They also enlisted a Rutgers faculty colleague, Douglas Eakeley, to join their cause.

Eakeley came to Rutgers in 2012 from the firm Lowenstein Sandler, P.C., as the Alan V. Lowenstein Professor of Corporate and Business Law and Distinguished Practice Professor. The late Alan Lowenstein and his firm have a long history of performing substantial public interest work. In fact, says Eakeley, “the firm has as part of its partnership agreement a recognition of our commitment to community, and that’s one of the many reasons I went there.” It is an essential function of the Lowenstein Chair at the Law School as well.

Eakeley, who also chairs the New Jersey Institute for Social Justice, tapped into resources at the firm – which agreed to join Cohen and the ACLU of New Jersey in representing, pro bono, a youth being reassigned to adult prison. They won a reversal of the transfer. In addition, Eakeley helped pull together even more elements of the legal and philanthropic communities into a Juvenile Justice Coalition – an effort not just to represent incarcerated juveniles, but to convince the legislature that structural reforms were desperately needed.

While there was some organized opposition to what the Rutgers team wanted to accomplish, especially from corrections officers who did not want to lose what they claimed were essential disciplinary tools, Simkins says legislators they encountered were not so much opposed to the goals as unaware of the harsh realities of juvenile detention. “Because juveniles who were incarcerated had no mandatory review hearings, and because the public defenders’ office rarely visited, people didn’t know what was happening with these kids once they were sent to the facilities. Youth could be sent to facilities for three years, six years, and never see a courtroom again. We were able to raise awareness about kids who were out of sight and out of mind.”

A law that represents real progress

With passage of the law, juveniles can no longer be transferred to an adult prison without due process where they are represented by an attorney. Solitary confinement is outlawed within juvenile facilities if the purpose is simply to punish. Even when solitary confinement is applied as a way of preserving safety, such as when a young offender becomes violent, there are limits to how long the offender can be confined.

The Rutgers professors say their work is far from done. For instance, this law does not cover solitary confinement of juveniles who already have been transferred to adult prisons – where guards still have complete discretion. But despite any shortcomings, Simkins calls the law “a tremendous, tremendous step forward.” 

Cohen adds that in the end, treating young offenders more humanely does not just make their lives less difficult, though simple decency demands that. She says it also benefits the rest of us when, sooner or later, their incarceration ends. “Every one of these young people eventually will be released to the community. If what happens to them while they are in custody makes them worse, it’s bad for them. It’s bad for all of us. The defining characteristic of adolescence is mutability, the potential for change. And it’s in no one’s interest to squash that.” 

Journalists are invited to contact Carla Capizzi of Rutgers University-Newark at (973) 353-5263 or capizzi@andromeda.rutgers.edu