APSAC, CAPSAC, and broad array of children's organizations file medical amicus brief in Flores

My clients APSAC and CAPSAC joined a broad array of children’s medical and advocacy organizations to file a health-related amicus brief in the ongoing Flores litigation and in the new case filed by twenty State Attorneys General.

I am proud to represent APSAC and CAPSAC in the strong stand they have taken regarding the new Rule: “As national experts on the standards relevant to acceptable care of vulnerable children, APSAC and CAPSAC reject the government's new rule allowing indefinite detention of children in facilities self-licensed by ICE. This is child maltreatment, plain and simple, and it is completely unacceptable.”

Read our brief here.

Read the full press release here.

Twenty state Attorneys General file lawsuit against new DHS Rule enabling indefinite detention

On Friday August 30, twenty state Attorneys General filed a lawsuit against the new DHS Rule purporting to replace the Flores Settlement Agreement, which sets standards for the detention and release of migrant children. The new Rule enables the indefinite detention of migrant children in facilities licensed not by the State where the facility is located, but by ICE. These and other provisions form the basis for the AGs’ arguments that the Rule violates the Administrative Procedure Act and the rights of the States to license child welfare facilities in their jurisdictions, among other points.

Read the new Rule here.

Read the motion for a preliminary injunction to halt or delay the enforcement of the Rule here.

APSAC files brief opposing Texas's attempt to end DACA protection

DACA faces another test in the Southern District of Texas, where Texas and other plaintiff states have sued to have DACA declared illegal from its start in 2012. They've asked the Court to enjoin DACA immediately. The United States, the defendant in the case, agrees with the States. So, the Court granted motions to intervene by a group of individuals represented by MALDEF and the State of New Jersey.

The American Professional Society on the Abuse of Children ("APSAC") filed an amicus brief in opposition to Texas' motion to enjoin DACA, and in support of Defendant-Intervenors.  Read the brief here. APSAC's goal is to educate the Court about the impact of DACA termination on the children of DACA recipients--young children very susceptible to the toxic stress caused by both the threat and the reality of their parents' loss of protection and potential deportation. These very significant harms must be weighed in the balance by the Court.

I'm proud to represent APSAC in this matter and to support my former colleague Rachel Wainer Apter, counsel to New Jersey, and MALDEF in their fight.

Southern California federal court enjoins family separation, orders reunification

Judge Sabraw of the Southern District of California has certified a class of migrant parents separated from their children by the Trump Administration and ordered (1) no further family separation, and (2) reunification of families after parents are returned to ICE custody from their criminal proceedings (absent a finding of unfitness or danger to the child).

Read the order here.

APSAC files amicus briefs in the DACA ligitation

I represent amicus American Professional Society on the Abuse of Children in the U.S. Courts of Appeals for the Second and Ninth Circuits in the DACA litigation. 

APSAC argues that rescinding DACA will harm the tens of thousands of U.S. citizen children of DACA recipients. Given DACA rescission, then deportation of their parents, these children will have to choose between remaining in the country of their birth and birthright--if that's even possible for them--or returning with their parents to a country they do not know. If DACA recipients are detained and then deported, their children may be taken by CPS and adopted out, especially if the United States' relationship with the parents' native country is insufficient to support the return of the child. 

Even the threat of deportation can cause children to suffer traumatic stress, a medical condition that can affect cognition, self-regulation, and ability to participate in school in the short term, and has been durably linked to seven of the ten leading causes of morbidity and mortality in the longer term.

You can read the Second Circuit brief here and the Ninth Circuit brief here. The Ninth Circuit argument is in Pasadena on May 15 and will be broadcast on CSPAN.

APSAC files a brief for refugee children and American Muslim children in the Supreme Court

Today, Persyn Law & Policy and Keith Bradley submitted an amicus curiae brief in the Supreme Court on behalf of our client, the American Professional Society on the Abuse of Children (APSAC). Read it here. Our brief supports the International Refugee Assistance Program and the State of Hawai'i in their suit against Donald Trump over the Executive Order that curtailed visas and refugee placement for persons from six targeted nations--six of the most war-torn nations in the world.

We don't make a legal argument. Instead, as we did in the Fourth and Ninth Circuits, we draw attention to the dire facts associated with the trauma suffered by refugee children when exposed to war, violence, and displacement and by American Muslim children when subjected to religious animus and bullying. Child trauma can do serious damage to the developing brains and bodies of children. We owe child refugees and American Muslim children the decency to consider carefully the burden we cause them to bear in issuing and obeying orders that exude animus at every step between drafting and execution. 

Perhaps this is who we have somehow become. But we must not remain so. Instead, may we be among those who defend the most vulnerable and promote religious freedom. This is the heritage and the lifeblood of our country. Fight for it.


Victory for Mexican American Studies in Arizona case

The Arizona District Court has awarded the student plaintiffs a resounding win in their battle against Arizona's elimination of Mexican American Studies. Read the opinion here. 

One of Judge Tashima's key findings is that the enactment of the statute that eliminated MAS was motivated by a discriminatory purpose. Former superintendent Huppenthal's blog posts and comments furnished key evidence of racial animus (notably, given the current climate, one post cited by the judge stated "MAS = KKK in a different color"). Judge Tashima specifically found that Huppenthal's blog comments were more indicative of his state of mind than his more anodyne public statements--in part because he hid behind a pseudonym.

In another key finding--and, again, importantly for our present context--Judge Tashima found that "certain frequently invoked terms and concepts, including 'Raza,' 'un-American,' 'radical,' 'communist,' 'Aztlan,' and 'M.E.Ch.A.' operated as derogatory code words for Mexican Americans in the MAS debate." These code words drew on "negative mischaracterizations that had little to no basis in fact." Yet they had particular power in communicating animus, specifically to Republican primary voters.

Judge Tashima further found that animus motivated enforcement of the statute as well, again relying in part on Huppenthal's blog posts. Former superintendents Horne and Huppenthal knew of other ethnic studies programs and had evidence that these program violated the statute, but they took no action to investigate possible violations. And enforcement of the statute was rife with irregularities--including finding that MAS violated the statute before the statute was even in effect--demonstrated further animus.

Particularly valuable to me is Judge Tashima's conclusion regarding the "face value" assumptions that superintendents made about MAS curriculum content. They assumed that any text taught as part of MAS was taught for its truth value, on its face. Thus, MAS teachers could not teach a speech by Che Guevara as an exercise in rhetoric, or to illustrate his thoughts and place in history. Instead, superintendents assumed that MAS teachers would convey the speech to students as literal truth. Denying any critical thinking content to MAS courses was a "baseless assumption" for Judge Tashima--and further evidence of negative stereotyping. 

One of the moments that transfixed the courtroom in the Ninth Circuit argument that preceded this trial was Arizona's statement that the academic success of the MAS program was irrelevant to the case. I found that statement shocking. It revealed that for Arizona, it was more important to stifle Mexican American Studies as a political threat than it was to properly educate all students. It was more important to Arizona to silence Mexican-American and Latino students than to promote their success. As the judge tartly noted: "One would expect that officials responsible for public education in Arizona would continue, not terminate, an academically successful program...Although Horne and Huppenthal were told that the MAS program was academically excellent, they refused to believe it." And that racist rejection of Mexican-American student success has finally been thoroughly quashed, today.

Justice is sometimes so, so sweet. 

APSAC files a brief speaking up for refugee children in the travel ban litigation

What impact does the "temporary" ban on refugees in President Trump's Executive Order 13,780 have on children?

Realizing that none of the many amici in the federal case were speaking for children, the American Professional Society on the Abuse of Children, represented by Persyn Law & Policy and Keith Bradley, filed an amicus brief in the Fourth and Ninth Circuits to inform the justices on the question.

These children are in grave danger, and the United States must shoulder its historical responsibility to aid them together with the global community. Syrian children, for example, are trapped in mass migration triggered by the worst humanitarian crisis since WWII.

Will we turn our backs and shut our eyes? Not if APSAC has anything to say about it.

Stay tuned for more as the cases go to oral argument on May 8 and 15.

Hanna Boys Center names Mary Kelly Persyn director of the Hanna Institute

From PR Web:


Hanna Boys Center is pleased to announce that Mary Kelly Persyn has been named director of the Hanna Institute for Hanna Boys Center. Joining her to launch the Institute will be a new assistant director, Nick Dalton. The Hanna Institute trains professionals from schools as well as youth development, child welfare, juvenile justice, substance abuse treatment and mental health organizations in using trauma-informed care practices to treat at-risk young people.

“With Mary Kelly’s vision and experience, we anticipate that the Hanna Institute will continue to influence the community, impacting in positive ways thousands of children touched by adversity,” says Brian Farragher, executive director of Hanna Boys Center. “As we leverage our 70 years of knowledge and experience and embrace the new science of trauma-informed care, it’s incredible to be able to bring top talent to our staff like Mary Kelly and Nick to lead such a critical initiative.” 
Persyn currently serves on the Board of Directors of the Center for Youth Wellness in San Francisco. Mary Kelly was recently named co-lead of the Youth Justice Policy Working Group of the California Coalition to Counter Childhood Adversity ("4CA") and she serves on 4CA's statewide Steering Committee. Formerly a criminal defense, civil rights and appellate lawyer, she served the U.S. Court of Appeals for the Ninth Circuit as a judicial law clerk and worked most recently as founder and principal of Persyn Law & Policy. Earlier in her career, she earned a Ph.D. in English literature and taught college English for many years. Mary Kelly earned her J.D. from Columbia Law School and her Ph.D. from the University of Washington. She lives in San Francisco with her husband and twin daughters.

“As a longtime social justice advocate for children and their families, I am thrilled to be joining Hanna in such a vital role at this critical time,” says Persyn. “We will touch thousands of children in our work over the next few years, helping them heal and recover by training other organizations with our deep knowledge of and experience with trauma-informed care. We strive to safeguard the lifelong health and well-being of youth by working to prevent and heal exposure to early adversity.”

Nick Dalton joins Hanna Boys Center as the Institute’s assistant director. Besides being a performer on TV and in the Broadway community for 15 years, Nick has spent the majority of his career involved in leadership development, community organizing and using the creative and healing arts to empower the self. Nick was an International Ambassador and Teaching Artist for the non-profit Artists Striving to End Poverty (ASTEP) for almost a decade. During his tenure, he focused primarily on Refugee, low-income, and oppressed communities which included teacher training at colleges and businesses all over the U.S. and India. Before launching the Education program at Transcendence Theatre Company here in Sonoma, he spent two years in India as director of The Maya Project, a collaboration with Teach For India. He lives in the Springs with his wife and their newborn son.

# # #

About Hanna Boys Center 
Since 1945, Hanna Boys Center has changed the lives of thousands of troubled, motivated youth through faith, education and caring, helping them grow into productive members of society. Hanna exists to help at-risk teens overcome the effects of childhood adversity—to become responsible, productive adults and realize their highest potential. We do this by providing a nurturing and therapeutic residential environment, a tailored educational model, and trained, caring adults who help kids create positive, permanent change in their lives. http://www.hannacenter.org

Clemency Project 2014: President Obama surpasses 1,000

With less than two months left on the clock, President Obama granted clemency to 79 prisoners during Thanksgiving Week. With that set of grants, the President brought his total to over 1,000 incarcerated people. Most of them are in prison for nonviolent drug offenses.

I'm proud to serve as a pro bono attorney for Clemency Project 2014. An army of attorneys is working feverishly to submit as many petitions as possible in the time left. I'm hopeful for my client, who is an excellent candidate, but we need to get in under the wire.

The New York Times covered the story, predicting that clemency will be far rarer in the Trump administration:

After Obama Push for Clemency, Hints of Reversal Likely to Come

By Matt Apuzzo, WASHINGTON, November 22, 2016 — President Obama is on pace to be the first president in a half-century to leave office with a federal prison population that is smaller than when he was sworn in, a reflection of eight years of liberal criminal justice policies, historically low crime rates and an aggressive use of presidential commutations.

Mr. Obama granted clemency to 79 federal prisoners on Tuesday, bringing his total to more than 1,000 inmates, most of whom were serving lengthy prison terms under strict sentences imposed at the height of the war on drugs. An additional 13,000 people have been released early by the courts, the Justice Department said.

But looming over the announcement was the fact that President-elect Donald J. Trump’s nominee for attorney general, Senator Jeff Sessions of Alabama, strongly opposed Mr. Obama’s liberal approach to criminal justice. Mr. Sessions favors vigorous enforcement of drug laws and the use of mandatory minimum sentences.

Some of Mr. Obama’s criminal justice legacy is easily undone. Justice Department policies that discourage seeking mandatory minimum sentences by default, for instance, can be torn up. But other changes, such as new sentencing guidelines, will have a lasting effect and will be difficult to reverse, regardless of the administration.

“I can’t speak to what the next president is going to do,” W. Neil Eggleston, the White House counsel, told reporters. “I can’t speak to whether the next administration will have a similar level of enthusiasm.”

Mr. Obama’s announcement highlights a fundamental disagreement between the departing and incoming administrations about the role that stiff penalties should play in the criminal justice system. Mr. Obama and those who have led his Justice Department regard long mandatory prison sentences for drug crimes to be an outdated legacy of the war on drugs, and one that disproportionately hurt minorities. Mr. Sessions, a former federal prosecutor, credits strict enforcement for today’s low crime rates.

“I was there when we had the revolving doors in the ’60s and ’70s,” he said in 2015. “We, as a nation, turned against that. We’ve created a system that requires certainty and punishment, swifter trials. And the result is a very great drop in the crime rate.”

President Lyndon B. Johnson was the last president to leave office with a smaller federal prison population than he inherited, according to Justice Department figures. His successor, Richard M. Nixon, declared war on drugs in 1971, and the prison population has since ballooned into the world’s largest, with about one in every 100 adults locked up in local, state or federal prisons or jails.

In 2010, Congress unanimously voted to reduce the sentencing disparity between crimes involving crack cocaine and those involving powder cocaine. Crack cocaine was disproportionately prevalent in African-American neighborhoods, while powder cocaine was favored by more affluent white users, leading to a sentencing imbalance that cut along lines of race and class. Mr. Sessions was an early supporter of legislation to correct that difference. But he adamantly opposed a subsequent bill, which died, that would have reduced mandatory minimum sentences for some drug crimes.

Senator Jeff Sessions, President-elect Donald J. Trump’s choice to become attorney general, favors vigorous enforcement of drug laws and the use of mandatory minimum sentences. 

In 2013, Attorney General Eric H. Holder Jr. wrote a memo to federal prosecutors, telling them not to bring charges involving mandatory minimum sentences in cases pertaining to low-level, nonviolent drug crimes. Prosecutors have responded by reducing the frequency of those charges by about 25 percent, the Justice Department said.

“You don’t just try to hammer everybody for as long as you can because you can,” Sally Q. Yates, the deputy attorney general, said on Tuesday. “Your obligation as a prosecutor is to look at the individual’s conduct.”

Inside the Justice Department, there is wide speculation that the next attorney general will withdraw Mr. Holder’s memo.

Mr. Obama has taken an interest in the issue and has used his clemency power to free people jailed for drug crimes. Typically, those prisoners would be eligible for release if sentenced under today’s standards. Mr. Obama has written personal letters to the inmates, telling them he believed they could turn their lives around.

“He is committed to using his clemency power in ways not seen in the modern era,” Mr. Eggleston said. “Our nation is a nation of second chances.”

While Mr. Obama’s commutations are the most high-profile examples of people getting out of prison early, they represent only a small fraction of those who have been freed under changes made by the Sentencing Commission, which in 2014 voted to retroactively reduce sentences for people convicted of certain drug crimes. That move, which the Obama administration supported, made thousands of people eligible for early release.

In the nation’s courtrooms, judges have been freeing prisoners, often with the Justice Department’s consent. More than 13,000 people have been freed so far, according to the Justice Department, and 29,000 others have been resentenced.

“We want sentences that are just and proportional,” Ms. Yates said. “That means we should sentence people in ways that will be fair, that will punish people for their crimes and that will serve as a deterrent. But we shouldn’t keep people in prison longer than is necessary.”

Taken together, the push for clemency and resentencing sends a message that the government is willing to address unfairness in the criminal justice system, said Caroline Platt, a federal public defender in Virginia. “It says the system can recognize its own excesses and try to correct them,” she said.

Neither Mr. Trump nor Mr. Sessions has said which policies they will continue. But in two decades in the Senate, Mr. Sessions has made it clear repeatedly that he sees mandatory minimum sentences and tough enforcement as critical to reducing crime.

“There still remains in this country a limited number of people who will rob, rape, shoot and kill you. There’s not that many,” Mr. Sessions said in 2004. “You identify those, and they serve longer periods of time, you’ll have a reduction in crime in America. And that’s what happened. The federal government adopted a tough mandatory sentencing policy without parole.”


Amended rape complaint filed against Donald Trump in SDNY

**UPDATED November 18: this case was dropped by the plaintiff on November 4.**

On October 3, plaintiff Jane Doe filed an amended complaint against Donald Trump in the Southern District of New York. The underlying conduct is his alleged rape of her. The complaint attaches three declarations, one by Jane Doe and others by Tiffany and Joan Doe (pseudonyms). Judge Ronnie Abrams has set a status conference for December. 

Posting these documents here for people who want to read them but don't have access to PACER.

The amended complaint is here.

Jane Doe's declaration is here.

Tiffany Doe's declaration is here.

Joan Doe's declaration is here.

Washington Post covers Joseph H. story: can an abused child waive Miranda?

The Washington Post picked up on SCOTUS' denial of review in Joseph H. v. California. My client Frank Vandervort, President of the American Professional Society on the Abuse of Children, is again quoted in this article. I'm so glad to see his views being included in press on this issue; the fact that Joseph was abused from birth, and therefore had a sky-high ACEs score with attendant difficulties, is--or should have been--a central part of his story. Here is the article:

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