Litigating DMC Part Two: How It Came Together


Our previous post covered a new strategy on how to compel juvenile justice systems to address DMC rather than just study it (read that post before you read this). Today, a quick post on how,  quickly and quietly, an untested legal theory became an initiative with money and staff behind it. 

Last summer, the Battle Creek, Mich.-based W.K. Kellogg Foundation was undergoing a major overhaul of its mission. One of the things the foundation decided to invest in heavily going forward was racial equity. This week, the foundation announced it would fund $5 million of work for racial equality and asked for proposals. 

Kellogg was already providing financial support for the D.C.-based Phelps-Stokes Fund's work on prisoner reentry, and TimeBanks USA (which Cahn founded and for which he now serves as board chair) was one of the groups that Phelps-Stokes contracted with to carry out the work.

At a meeting with Kellogg Vice President Gail Christopher, Cahn offered to look at some legal cases that might help them with involving racial factors in parole revocation. When he came upon City of Canton v. Harris, [an Ohio case the Supreme Court decided in 1989] he was struck by the court's rationale in the case (again, read the previous post for a full rundown of the legal theory). "I thought, I can prove this" when it comes to detention disparity in the juvenile system, Cahn said in an interview with JJ Today.

He discussed his litigation theory with Christopher. She asked for something she could show Kellogg President Sterling Speirn, and Cahn quickly produced a seven-page outline of the theory and how it would play out in court.

Just over a month later, on Oct. 1, Kellogg gave Cahn $383,000 to develop the legal theory and a course of action to put something in motion. "Can you imagine the speed" it developed at? Cahn asked JJ Today. We agree: the notion of a foundation funding a totally untested strategy, a month after learning about it, in this economy, is remarkable.

Enter Cynthia Robbins, Cahn's partner on the initiative. Robbins ran the See Forever Foundation, which runs five charter schools in D.C., including one at the city's secure juvenile facility. She had known Cahn for years.

"He called and told me, 'I just got this grant to develop a legal theory on civil rights.' I was intrigued, my first job after school [Stanford Law] was litigation," Robbins said.

Since October, the two have brought a number of partners into the mix, taking the project from "nice theory to debate academically for years" to "nice theory that will be tested in the near future" status. Among the key players:

Bart Lubow, Mark Soler, James Bell, Paul DeMuro. Lubow oversees the Juvenile Detention Alternatives Initiative, which has worked collaboratively with counties and states on reforming detention use. "He's done a brilliant job disseminating" JDAI's results, Cahn said.

He said Lubow has committed the use of JDAI's consultants on DMC to the cause. Chief among them are Mark Soler, who heads the Center for Children's Law and Policy, and James Bell, executive director of the W. Haywood Burns Institute in San Francisco. DeMuro, a consultant based in New Jersey, is pretty much a JJ savant, so he will likely have multiple roles. 

JDAI's team on DMC can help provide experts to do a number of things, including: use data to prove and demonstrate detention disparities, and speak convincingly about successful remedies developed through JDAI.

Youth Advocate Programs: Any system that agrees to fix detention disparity will need a healthy infusion of alternatives to detention, and YAP is widely considered to be among the most successful alternatives to incarceration.  The Pennsylvania-based nonprofit would probably be available for any state that seeks it assistance.  Sadly, things have gone the other way for YAP of late; both South Carolina and Louisiana are cutting out YAP programs due to budget constraints. YAP and other youth-serving organizations, such as the Dane County Time Bank in Madison, Wis., are equipped to provide youths who can speak out about their experiences in detention, enabling Cahn and Robbins to put a face to the issue at hearings.

Hearing Holders: The Black Caucus of State Legislators and the National Caucus of Native American State Legislators will help the initiative get hearings on the calendar. A slew of prominent law professors - including Perry Moriearty at the University of Minnesota and Wilda White at the University of California-Berkeley - will also help assemble high-profile hearings.

John Payton and Joseph Tulman. Payton is the NAACP Legal Defense and Educational Fund; Tulman is a professor at the University of the District of Columbia's Clarke School of Law who does work with the Southern Poverty Law Center and served on the American Bar Association's Children's Rights Litigation Committee. They lead a group of allies that will be essential to Cahn: "lawyers that are good at picking fights," he said with a chuckle.