Florida’s public defenders plea for COVID testing in juvenile lockups

On April 10, the Florida Department of Juvenile Justice reported the first three cases of COVID-19, the highly contagious respiratory disease caused by the novel coronavirus. All three were staff members.

Now, less than three months later, 97 young people and 106 staff at residential programs and detention centers have tested positive.

While the department has set guidelines for screening incoming youth and staff and suspending visitation, public defenders, other attorneys and academics are asking why the Department of Juvenile Justice is still only testing those with symptoms or those who had contact with someone believed to be sick with coronavirus.

There are about 1,700 youth at 72 facilities statewide, 541 of whom have been tested for the virus, according to the Department of Juvenile Justice.

“The growing number of positive tests compels me to inquire about the procedures and precautions being taken,” Gordon Weekes, Broward’s top assistant public defender, wrote in a letter to Department of Juvenile Justice Secretary Simone Marstiller on Wednesday. In the letter, he asked for details about how the department is ensuring the safety and well-being of youth in their custody.

Weekes told the Miami Herald that he’s sent two similar letters to Marstiller but has not received a satisfying response.

In a statement to the Miami Herald, Marstiller wrote that the department “continues to be vigilant in our fight against COVID-19” and that she has “put procedures in place to mitigate the spread of the virus to protect the youth in our facilities and the staff that care for them.”

“We continue to follow CDC guidelines and work diligently with each facility’s designated health authority and the local health departments,” she wrote.

Marstiller ensured stakeholders in a recent letter that the department was following Centers for Disease Control criteria on cleaning and disinfecting facilities, monitoring symptoms among youth and limiting group sizes to ensure social distancing. The agency asked “vendors, guests, volunteers and business partners” to stay away from lockups and programs if they were experiencing flu-like symptoms or had traveled outside the United States.

The department also started testing those being released from facilities with a significant number of cases, but other testing is contingent on the direction of doctors, parents and guardians.

Bernard Perlmutter, a law professor at University of Miami and co-director of the school’s Children and Youth Law Clinic, said widespread testing is the clear answer to stopping the spread among youth in state custody.

He said CDC screening guidelines are fine, but that when dealing with youth, Department of Juvenile Justice should “exceed, not stick to the minimum.”

The youth being screened for testing are often vulnerable or have limitations that limit their ability to self-report symptoms accurately, he said. Instead, all youth should be tested.

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“There is no excuse ... these types of places are Petri dishes for the spread of disease,” he said. “The risks are too great to take any chances with the spread of the disease.

Weekes said he has repeatedly asked for more testing and contact tracing to ensure proper care for those who had contact with a positive case.

He noted recent statistics from the state Department of Health that show more than 7,000 other children under 18 have tested positive for the disease since the pandemic began in March. Of the kids who tested positive, 2,865 were in South Florida.

“It boggles my mind that they won’t take that initial step ... It goes really quickly from asymptomatic to bad in a short period of time,” he said. “This lackadaisical approach is counter-intuitive to how they should protect children in their care.”

Christian Minor, executive director of the Florida Juvenile Justice Association, said he thinks the agency has done an “incredible” job getting ahead of the coronavirus pandemic.

His group, whose membership includes private providers who contract with the department, have gotten lots of guidance from Marstiller. He said her plans went “above and beyond.”

Cases are growing slower than they are in the state’s Department of Corrections, which Minor attributes to Marstiller’s leadership.

“Secretary Marstiller set the precedent on dealing with COVID,” he said. “Very early on, she tackled it.”

One common agreement among juvenile justice advocates and public defenders is that social distancing can be achieved by releasing nonviolent youth or those near the end of their sentence.

Perlmutter said he would like to see litigation that pushes for the release of youths.

Jennifer Peck, a criminal justice professor at the University of Central Florida who has researched the juvenile justice system, echoed the sentiment. Releasing young people close to the end of their sentence could relieve some of the stress the pandemic has put on facilities

“In these facilities, social distancing can be almost impossible,” she said.

Megan Eaton, juvenile chief for the public defender’s office in Palm Beach County, said “we would rather not have children at the detention centers, period.”

There are 31 young people that have tested positive in Palm Beach County Department of Juvenile Justice facilities.

Eaton said her office is also concerned that youth and their parents may be under-reporting symptoms to avoid being quarantined away from others. The separation could take a toll on their mental health, she said.

According to the department, youth in quarantine still have recreational time but only interact with other quarantined individuals.

Eaton added that her office hasn’t had a trial since March, and that there are many pre-trial cases that are pending with no resolution. Because of that, she said, the children at the facilities are having a hard time.

“Our concern is about their health, but also their well-being,” she said. “There are so many layered difficulties with keeping children in a facility during a pandemic that most people don’t think about.”

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