Testimony of Mary L. Bonauto for GLAD

LD 320 – Ought To Pass

An Act To Provide the Right to Counsel for Juveniles and Improve Due Process for Juveniles

Joint Standing Committee on Judiciary

February 24, 2021

Senator Carney, Representative Harnett and distinguished members of the Joint Standing Committee on Judiciary,

Good Morning. My name is Mary Bonauto. I am an attorney at the Maine office of GLBTQ Legal Advocates & Defenders, which works primarily in New England and for equal justice under law without regard to sexual orientation, gender identity or HIV status. I am happy be here supporting Rep. Morales’s bill. GLAD’s work has long been deeply connected to supporting LGBTQ children and families so they can live their lives and contribute to their communities with the same legal protections and responsibilities as others, and without harassment and discrimination because of their overlapping BIPOC and other identities. On a weekend in November 2016, I was notified that a young transgender individual had committed suicide while in detention at Long Creek. I was stunned, and because we had also just received disturbing letters from two gay individuals committed there, I asked a volunteer at the facility to please connect me with young people there. With what I saw, there was no option to look away. 1 Most of the young people I met at Long Creek were members of the LGBTQ community. Researchers and experts identify LGBTQ young people, particularly when they are girls and/or BIPOC, as also overrepresented in the juvenile justice system. The reasons include rejection from their own families, disproportionate physical and sexual abuse, dual involvement with state child welfare systems, heightened scrutiny and school discipline for expressing same- sex attraction, transgressing gender norms, or defending themselves against harassment, are

1 During this time, There was a mandatory PREA mandatory audit under the Prison Rape Elimination Act (which required DOC staff to use the PREA screening tool with fidelity, and to train staff and residents on refraining from harassing behavior and comments, including as to LGBTQ young people); a study to examine suicide protocols since so many young people had been making suicide attempts, a JJAG-funded assessment of Long Creek policy and practices conducted by the Center for Children’s Law & Policy. Later I served on the Juvenile Justice Reinvestment Task Force which issued its report on February 2020. See PREA Audit of Long Creek Youth Development Center, Sept. 2017, https://www.maine.gov/corrections/sites/maine.gov.corrections/files/prea/Longcreek%202017%20Final %20PREA%20Report.pdf ; Susan Sharon, Review Shows Deficiencies in Maine Youth Prison Following Transgender Teen Suicide, MainePublic, July 13, 2017 at https://www.mainepublic.org/post/review- shows-deficiencies-maine-youth-prison-following-transgender-teen-suicide; CCLP, LCYDC Conditions Assessment Narrative Report, Executive Summary, https://www.glad.org/wp- content/uploads/2017/12/Executive-Summary-Long-Creek-Youth-Development-Center-Conditions-of- Confinement-Assessment.pdf 1 among the commonly cited drivers of justice involvement.2 They are born into families all over the State and are therefore of every racial, ethnic and socioeconomic background. 3 I spent time with these young people and got to know them as we sorted out myriad issues of life in a restrictive, regimented system like Long Creek. They were engaged, but also suffering and trying to survive.4 I saw in them what I’ve seen 30+ years of lawyering: limitless potential and promise for young people, especially when they have genuine opportunities to

2 See generally, National Academies of Sciences, Engineering, and Medicine. (2019). The Promise of Adolescence: Realizing Opportunity for All Youth. Washington, DC: The National Academies Press. doi: https://doi.org/10.17226/25388, at 133, at https://www.nap.edu/download/25388 (hereafter, National Academies, The Promise of Adolescence); Bianca D.M. Wilson et al., Disproportionality and Disparities Among Sexual Minority Youth in Custody (Springer 2017), available at: https://link.springer.com/article/10.1007/s10964-017-0632-5 ; Center for American Progress, Movement Advancement Project, Youth First, Unjust: LGBTQ Youth Incarcerated in the Juvenile Justice System, at 5 (June 2017), https://www.lgbtmap.org/file/lgbtq- incarcerated-youth.pdf; Caitlin Ryan, Family Acceptance Project, Supportive Families, Healthy Children: Helping Families with Lesbian, Gay, Bisexual, & Transgender Children (2009), http://familyproject.sfsu.edu/sites/default/files/FAP_English%20Booklet_pst.pdf; Caitlyn Ryan, David Huebner, Rafael Diaz, Jorge Sanchez, Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay and Bisexual Young Adults, Pediatrics 123 (1), 346-52 (2009). Angela Irvine, Aisha Canfield, The Overrepresentation of Lesbian, Gay, Bisexual, Queer, Gender Nonconforming, and Transgender Youth in the Child Welfare to Juvenile Justice Crossover Population, Journal of Gender, Social Policy & the Law, 24(2) 243-61 (2016); Office of Juvenile Justice and Delinquency Prevention, LGBTQ Youths in the Juvenile Justice System (2014); available at: https://www.ojjdp.gov/mpg/litreviews/LGBTQYouthsintheJuvenileJusticeSystem.pdf; GLSEN 2016, Educational Exclusion: Drop out, push out and the school to prison pipeline for LGBTQ youth (New York 2016), available at: https://www.glsen.org/sites/default/files/Educational%20Exclusion_Report_6-28- 16_v4_WEB_READY_PDF.pdf

3 We have little data on LGBTQ young people in Maine. According to the MIHYS data, 13.6% of young people identify as LGB and 1.6% who identify as transgender (another 1.6% say they are unsure). That survey shows that LGBT high school students report less support from adults and more violence and discrimination at school, home and in the community. See MIHYS infographics on LGBT Student Health and Health Disparities of Maine Transgender Youth, attached, and available at https://data.mainepublichealth.gov/miyhs/files/Snapshot/2019MIYHSLGBTInfographic.pdf and https://data.mainepublichealth.gov/miyhs/files/Snapshot/2019TransgenderInfographic.pdf (both attached). It is important to disaggregate the data on race as well, but GLAD does not have that information.

4 It is important to look at the context surrounding the commitment of many young people who end up as justice involved. As a 2018 report on DHHS explained: “When a child needs behavioral health services but is unable to access them because of a waitlist, or the services are simply not available, the child’s symptoms and behaviors may escalate. This can lead to destabilizing behaviors, including regression, self-harm, and aggression, which, in turn, can escalate and cause school disruption, use of crisis services, and ultimately emergency room visits and possibly hospitalization or juvenile justice involvement.” Children’s Behavioral Health Services Assessment Final Report at 25, Maine Dep’t of Health and Human Services (Dec. 15, 2018), available at https://www.maine.gov/dhhs/ocfs/cbhs/documents/ME-OCFS- CBHS-Assessment-Final-Report.pdf

2 succeed, when they have adequate financial and social and familial supports, and when they are not injured and held back by discrimination and bias.

They were all adolescents from 16-20 years old. Many experts in many fields– in health fields, child welfare, corrections - see this as a precious time in life when, in the words of the National Academies of Sciences, young people can “redirect and remediate maladaptation in brain structures and behavior from earlier developmental periods” – even with the burdens of Adverse Childhood Experiences - – into “resilience.”5

That means we need to take great care when we consider ordering secure confinement for a young person at this crucial juncture in their development given the harm this causes. Among our highest duties is the care of and concern for our young people. Other testifiers have said the same, including Liz Blackwell Moore, Carlann Welch and Meagan Sway.

GLAD strongly supports all of LD 320 and remains interested in hearing and working with the sponsor to address any concerns. 6

We urge you to end the one year minimum for confinement at a juvenile corrections facility, and to support the counsel and review provisions that will give young people an advocate and a voice in their care and their life’s course. The young people I worked with at Long Creek each lingered too long, to their and our collective harm. For example, one had no programming at all and aged out at 21.

Another young person had tried to make himself busy, and had earned college credits, worked in the laundry, and had completed every program Long Creek could offer, 7 but his progress to living his life was “on hold.” He could not attend SMCC for a course in skilled trades and he was not allowed to work. To DOC’s credit, they worked with him and me after I brought forward relevant health information and background on his charges. After a forensic risk evaluation and deep dive on this young person, he was allowed the lifeline of some partial community integration and could at last work and go to school outside of Long Creek.

To be clear though, we all know from the data provided in the February 2020 Report to the Juvenile Justice Assessment and Reinvestment Task Force, “length of stay” remains an issue. Moreover, confinement that extends beyond 3 to 6 months is counterproductive to them and to

5 National Academies, The Promise of Adolescence, at 32.

6 As to age, past practice shows that young people who could fall within the ambit of corrections jurisdiction often have a trauma history that is more appropriately served elsewhere. s one of the young men I worked with testified in 2019, he could barely cope himself with Long Creek at age 17. Moreover, what does it say that competency is generally assumed at age 14 15 MRSA sec. 3318-A (8) (using age 14 as the factor for shifting burdens of proof to demonstrate competency). As to the factors for guiding the Juvenile Court’s decision to withhold an institutional disposition, LD 320 asks that the court consider the age of the young person and whether the offense was a misdemeanor (Class D or Class E offense if committed by an adult). Notably, recent DOC data shows that 67% of young people committed at Long Creek in Dec. 2020 were there for misdemeanor offenses and the rest for felonies. Fact Sheet, Maine Youth in Confinement, January 2020 (sic) (attached).

7 These groups included Aggression Replacement Training, Interpersonal Violence Group, Risk Reduction Group, most of The Seven Challenges, Career Prep and Transition, Restorative Justice Stay Free Group, Cooking Matters and Helping Men Recover. 3 public safety.8 This bill would allow all young people incarcerated at Long Creek to have an advocate in their corner able to articulate their concerns and ask for a closer look at their circumstances as appropriate.

I will never forget the young people I met. One young person from Aroostook, 16 when I met him, had a very difficult time at Long Creek and was discharged at age 18. He succeeded in taking his life within just a few months of discharge. His is not the only example of failed community integration, or of young people moving from the juvenile system into the adult system.

Please provide young people the voice and review they need and deserve. Due process and fundamental fairness demand as much. And this is about our young people, our treasure and our future. Please vote ought to pass.

Thank you and we respectfully request your support for this bill.

Truly yours,

Mary L. Bonauto GLAD Attorney

8 Center for Children’s Law and Policy et al. (2020), Maine Juvenile Justice System Assessment, at 83-84 (detained youth); 101-104 (committed youth), available at https://irp- cdn.multiscreensite.com/de726780/files/uploaded/Maine%20Juvenile%20Justice%20System%20Assess ment%20FINAL%20REPORT%202-25-20.pdf 4

LGBT Student Health High school-level data from the 2019 Maine Integrated Youth Health Survey

13.6% Sexual Orientation Gender Identity of Maine high school 12.4% 1.6% of students of Maine high students identify as identify as school LGBT (about 7,500). either students gay/lesbian, identify as or bisexual. transgender. That's nearly 1 in 7 students.

Heterosexual (83.2%) Gay/Lesbian (2.8%) Transgender (1.6%) Cisgender (95.4%) Bisexual (9.6%) Not sure (1.6%) Not Sure (4.4%) Did not understand question (1.4%)

LGBT students experience more violence and discrimination at school, at home, and in the community.

LGBT students are more likely LGBT students are more likely to experience LGBT students are twice as likely to to be bullied at school (in the offensive comments or attacks at/on the way feel unsafe at school. past 12 months). to school because of: their perceived sexual their gender expression orientation LGBT 25% LGBT 37% LGBT 38% LGBT 26% Non-LGBT 12% Non-LGBT 21% 4% 8%

LGBT students are less likely to have support from adults, and more likely to experience violence. LGBT students are significantly Non-LGBT LGBT more likely to say that violence in their home or the threat of Parents help me 65% violence made them consider succeed leaving home. 79%

LGBT 38%

69% Family provides love Non-LGBT and support 18% 83%

LGBT students are three Support from adults 42% times more likely to other than parents LGBT have been forced to 31% 53% have sexual contact in Non- 9% their lifetime. LGBT

I feel I matter to 37% my community LGBT students are twice as likely to have four or more adverse 60% childhood experiences* (LGBT: 44% vs Non-LGBT: 18%).

*For more information see Adverse Childhood Experience infographic at: https://data.mainepublichealth.gov/miyhs/files/Snapshot/2017ACEsMIYHSInfographic.pdf LGBT students face many challenges and fewer supports. Their mental health outcomes are significantly worse.

LGBT students are more than Nearly half of LGBT students LGBT students are nearly four twice as likely to feel sad or have long-term emotional or times more likely to have hopeless (for two or more weeks behavioral problems expected seriously considered suicide in the past year). to last 6 months or more. in the past year. 41% 12% 2,800 LGBT students LGBT Non-LGBT LGBT 64% LGBT 45% seriously considered suicide in the past Considered Non- Non- year. That's enough to LGBT 27% LGBT 15% suicide fill 58 school buses.

To cope with violence and discrimination, many LGBT students may turn to harmful substance use...

LGBT students are twice LGBT students are LGBT 27% as likely to have smoked significantly more likely cigarettes in the past 30 to have used alcohol Non-LGBT 23% days. and marijuana in the Alcohol past 30 days. LGBT 13% LGBT Non-LGBT 6% 30%

Non-LGBT Marjiuana 21% Compared to non-LGBT peers, LGBT students are:

4% Heroin Twice as likely to have ever used heroin 2%

6% Twice as likely to have ever used cocaine Cocaine 3%

Rx drugs 8% Twice as likely to have used Rx in past month without Dr's permission 4%

Inhalants 13% 6% Twice as likely to have ever used inhalants

Pain meds 18% Nearly 2x as likely to have ever used painkillers without Dr's permission 10%

Non-LGBT LGBT

What you can do to support health and well-being for lesbian, gay, bisexual, and transgender (LGBT) students in Maine:

Create or support a Gay/Straight/Trans Alliance Create a welcoming and affirming (GSTA) in your school. Resources for starting a environment in your school, GSTA are available through the Maine chapters of organization, or community by actively the Gay Lesbian & Straight Educators Network reaching out to LGBT youth, and using (GLSEN): www.glsen.org/chapters/southernme or inclusive language and programming. www.glsen.org/chapters/downeastme.

Provide LGBT youth with opportunities to connect Learn how your school, organization, or with each other, and with supportive adults in community can better serve and support your school or community. LGBT young people and their families.

For more information about MIYHS or this factsheet visit: https://data.mainepublichealth.gov/miyhs/home Source: Maine Integrated Youth Health Survey 2019. Note: All differences presented are statistically significant based on non-overlapping 95% confidence intervals. Created May 2020 Health Disparities of Maine Transgender Youth

High school-level data from the 2019 Maine Integrated Youth Health Survey

Transgender students experience Not Sure 1.6% of high school mental and physical health 1.6% students say they disparities, which are differences are not sure if they of Maine high are transgender. linked to social disadvantage, school students identify as Their health risks such as a history of exclusion or transgender* are similar to (About 900 students) transgender discrimination. students.

Transgender students are more Compared to cisgender students, likely to experience physical, transgender students are: Violence emotional, and sexual violence More likely to have been bullied compared to cisgender** 2x on school property in the past students. year (44% vs 22%).

28% of trans students More likely to have been threatened have dated someone who 4x or injured with a weapon in the past physically hurt them on year (33% vs 9%). purpose (vs 8% of cisgender). More likely to have skipped school 4 1 % of trans students have 3x because they felt unsafe in the ever been forced to have sexual past month (17% vs 5%). contact (vs 11% of cisgender).

Mental Nearly three quarters of trans Compared to cisgender students, students reported depressive 49t%ransgender students are: Health symptoms, and half seriously 43% 49% considered suicide in the past year. More likely 43% to have ever 2x wanted to leave home due to 20% 72% 52% violence or the Depressive Considered threat of symptoms suicide violence. vs 31% cisgender vs 15% cisgender More likely to have slept 8x someplace other than their 17% 17% parent’s or guardian’s home 2% in the past month.

Transgender Not Sure Cisgender

*Transgender (trans): those who identify with a gender other than the one they were assigned at birth. **Cisgender: those whose identify with the gender they were assigned at birth. Health Disparities of Maine Transgender Youth

Trans students are less likely than cisgender students to feel supported by adults. Protective 82% 78% Only 1 in 3 trans Factors75 students feel that 60% 56% 58% they matter to 55% 52% 50 people in their 35% community. 32% Set targets and measur(ves per2 informance 3 25 cisgender)

0 Parents help me succeed I have support from other Love & support from adults family most/all of the time

Transgender Not sure Cisgender

Substance Supporting Trans Youth Use What adults can do to help in their school, organization, or community: Trans students are more likely to smoke and use substances in the past 30 days compared Create or support a to cisgender students. Gay/Straight/Trans Alliance (GSTA) in your school. Resources for starting a GSTA are available at: 4X www.glsen.org/chapters/southernme more likely www.glsen.org/chapters/downeastme misuse prescription 30% drugs FORM Create a welcoming and affirming environment by reaching out to Name: ______22% transgender youth, and using Pronouns:___ inclusive language and 15% programming.

1.5X 4% more likely to use marijuana Provide transgender youth with opportunities to connect with each other, and with supportive adults. 3X 20% more likely to smoke Educate yourself and your cigarettes colleagues about how to better serve and support trans youth 6% and their families.

See more youth health data at: https://data.mainepublichealth.gov/miyhs/home Source: Maine Integrated Youth Health Survey 2019. Note: All differences presented are statistically significant based on non-overlapping 95% confidence intervals. Updated September 2020. FACTSHEET: Maine Youth in Confinement

January 2020

The following presents data on Maine youth who were either committed or detained at Long Creek at the end of December 2020. The data was analyzed by the University Of Southern Maine, Cutler Institute, for the Maine Department of Corrections with the goal of informing strategies and policy discussions to help support positive outcomes for all justice involved youth. For more information and further data please see: maine.gov/corrections/juvenile-services

Figure 1: Maine Committed and Detained Youth Population Key Findings

 Overall, the confined youth population in Maine has decreased 56% (78 to 34) since the start of 2018 and admissions have decreased 83% (72 to 12) in that same time period.  In 2020, the average daily confinement population decreased 36%, down to 36 youth on average for Q4 compared to 51 in Q1 in 2020.

 At the end of Q4, 2020 there were a The figure above shows the downward trend of the number of committed and total of 34 youth in confinement. Of detained youth in Maine in the last 3 years. This includes population counts at the those youth, 5 were female, 7 start and end of each quarter, as well as the number of admissions and releases. identified as BIPOC, and 63% were between the ages of 16-19. Figure 2: Committed and Detained Youth- End of December, 2020

 In 2020, the pandemic resulted in increased efforts to divert youth into alternatives to detention and to release youth into community- based supports. Many of these practices could be continued after the pandemic ends.

Definitions & Terms Average Daily Population (ADP) represents the average of the total population count each day throughout the quarter.

BIPOC represents all youth who identified as Black or African American, Indigenous or The figure above shows the population of committed and detained youth at the end Native American, or another Person of of December 2020. In total, there were 34 youth at the end of 2020 confined at Long Color. These categories have been grouped Creek. At that time, 54% were between the ages of 14 to 17 years olds and 46% together to protect confidentiality due to were 18 to 23 years old. Eighteen of those youth were committed and among those small sample sizes. who were committed, 67% were there for a misdemeanor offense, and another 33% were there for a felony offense.

Cutler Institute, Justice Policy Program

Mary Bonauto Portland

Thank you for adding this to the testimony in support of LD 320. A letter from the Governor's Counsel about this bill was mistakenly uploaded as GLAD's (Mary Bonauto's) testimony during the hearing on the bill.