Brian Sonenstein is a reporter covering incarceration and the prison abolition movement. He is a columnist for the Portland Phoenix, co-founder of Shadowproof.com, and co-host of the Beyond Prisons podcast. Shadowproof.com/beyond-prisons

This month, Maine’s Law Court upheld the incarceration of a teenager known as JR for low-level property crimes.

In a concurring opinion issued with the decision, Chief Justice Leigh Saufley and two of her colleagues indicated they supported his incarceration, but said the lack of resourced alternatives that supposedly left the state with no other options was a “tragedy.”

The Portland Press Herald called the opinion “scathing” and Bangor Daily News a “sharp critique.” But considering the horrors of Long Creek Youth Development Center are so well documented, such rhetoric from the state’s highest court is the least one should expect. Viewed less charitably, the court is passing the buck when it had the opportunity to instigate change.

“We know that children who commit low-level property crimes are not risk to public safety,” said JR’s appellate attorney Tina Heather Nadeau in an interview with The Phoenix. “Any benefit we get from incarcerating them is completely obliterated by the devastation that brings to that child and going into the future as adults. How do we call something a tragedy and allow it to continue?”

In the opinion, Saufley bought the state’s argument that a 15-year-old’s failure to immediately desist from misbehavior and submit to counseling over offenses such as painting “420” on a stolen scooter and throwing rocks at a school meant he was “spiraling out of control.” They agreed with prosecutors that probation “would almost certainly fail” and that JR posed such a grave threat to the community that it outweighed the serious long-term harms of juvenile detention.

In oral arguments, Saufley said there was “something about incarceration that can really focus the mind.” Yet the state didn’t seem the least bit interested in testing that hypothesis in the moment: JR was already locked up for 10 days at Mountainview Youth Development Center before trial and he was appealing his case from Long Creek.

“No one asked him on the record what did that do, what did that mean to him?” Nadeau said. “Was he aware how serious this was now and would he be willing to try harder? There was no conversation with him about what those 10 days did.”

Indeed, JR’s voice doesn’t appear on the record from his trial. The only person advocating against incarceration is his mother.

In light of this, the judiciary’s approval of such harsh and detrimental treatment of a teenager should dull Saufley’s “sharp critique” in the eyes of the public.

“I appreciate her sentiments and I do agree the Legislature needs to get involved. I do agree [that] the executive branch via the governor, via Health and Human Services, via the Department of Corrections, needs to get involved. But the judiciary has to get involved too,” Nadeau argued.

Pointing out that Saufley is overseeing a system that “tragically is incarcerating and punishing and hurting children who should never be involved in that part of the system, ever,” Nadeau said the justices “really had the opportunity here to draw a line in the sand and say, regardless of the availability of resources, [that] the incarceration of children for these types of offenses is inappropriate and it does not square with our juvenile code.”

“I’m one attorney with one client who is completely dependent upon the powers that be to give me the nod. That's one thing. She is the power that be.” Nadeau said. “She’s the chief of a co-equal branch of government. She is equal to the governor, to the speaker of the house and the senate president. She is equal to them. She has authority.”

Even so, only two other justices signed on to Saufley’s criticisms of the system.

“The other four [justices] don’t see this as a problem? Business as usual is acceptable to them? I find that appalling,” Nadeau declared. “At least those three justices are acknowledging that the system is not flawed, it’s broken, and it’s hurting the most vulnerable children in our state. People that the state has taken custody of, they are responsible for these children and we are overseeing their destruction in the name of rehabilitation.”

“If the law court had said no to this, that would have sent a much bigger message than ‘this is a tragedy, but business continues as usual,’” Nadeau said. “They’re overseeing and authorizing a tragedy through our system. It’s crazy.”

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