Important People

The Kids of Rutherford County podcast mentions other people who played a role in the decades long devolution of the County’s system of juvenile justice, and fails to discuss others who contributed to its destruction and the changes that have been made. Mischaracterizations or omission of these players may serve the “narrative framing” The New York Times chose to make believe into reality, but they distort the truth and create the impression that this problem is isolated to certain personality flaws of discrete individuals. That isn’t true and should not be the message of the podcast. It’s also unfair to several people.

It takes more than one person to create a broken system, and there are usually lots of people who could do more to stop it. In this section I discuss important individuals and systemic players that have either been mischaracterized or ignored but are necessary to seeing this system clearly and achieving lasting change.

Judge Donna Scott Davenport

Judge Donna Scott Davenport is presented as a ruthless, dismissive, power-obsessed narcissist who insisted on breaking the law to rule her personal fiefdom. She comes off as evil personified. That portrayal is not accurate.

I met Judge Donna Scott Davenport in 2000, right after she was elected as Rutherford County’s first Juvenile Court Judge. Judge Scott (as she was named at the time) did not know what she was doing, but neither did anyone else. At the time, Rutherford County had an ancient but small juvenile detention center, so the mass incarceration that developed had not yet materialized, and in any event I never represented those kids. Instead, I saw her create the foster care legal system on the fly, largely in collaboration with a woman with decades of experience with DCS. That system was flawed and the methods used to create it were silly. But evil did not birth it. Rather, Judge Scott did the best she could with the little she had and tried to protect kids from harm.

Later, the delinquent arm of the juvenile system exploded and the subjects of our second class action emerged. Kids were routinely arrested and then jailed in violation of the law. Eventually, the podcast correctly describes, Wesley Clark began to cite the correct law routinely and Judge Davenport ignored him. She jailed lots of kids who should not have been jailed and issued an order that law enforcement arrest kids who should not have been arrested.

I do not believe her motives were evil, however. First, I think she dismissed Wesley’s arguments because he was a brand new lawyer and she had been on the bench for well over a decade. She simply believed she already knew the law and this hot shot did not know how the system worked. That’s a prejudice lots of people have, look at the boomer vs. millennial silliness. It’s not evil, it’s just wrong. Second, and perhaps more importantly, she subscribed to a disastrously but sticky idea that is of utmost importance right now in Tennessee—that the way to cure youth crime or misbehavior is punishment, scaring them straight, showing them consequences. This wrongheaded and wrong-hearted idea permeates thinking about juvenile justice even though psychologists and now neuroscientists have demonstrated that it is simply wrong—kid brains and psychology don’t work that way. But the thinking doesn’t make Judge Davenport evil, it just makes her wrong.

Most importantly, the biggest problem with characterizing Judge Donna Scott Davenport as an all-powerful malevolent actor is that it creates the impression that if you cut the head off the serpent you kill the snake. In other words, now that Judge Davenport is gone, the problems in Rutherford County left with her. The truth is that judge Davenport is no more evil than your well-meaning but ill-informed grandfather who believes kids today just need a good whooping’ or that if you “spare the rod, you spoil the child.”

Judge Davenport was never the real problem, although she was a big part of it. The real problem is flawed ideas that too many people cling to because they are easier and shift the blame directly onto the kids instead of forcing all of us to share responsibility.

Leslie Collum (Prosecutor)

The podcast presents Leslie Collum as a helpless cog in the wheel who knew kids were locked up who should not have been, but could do nothing about it. That was not my experience with District Attorney Collum.

First, to be fair, when the County decided to build a gigantic kid jail and eschew rehabilitation as a goal, Leslie Collum had an unfair and nearly impossible job. Instead of the handful of kids she should have been dealing with, she was responsible for prosecuting hundreds and hundreds. This required her to make cookie cutter deals just like prosecutors do in big cities for adult criminals. Kids were not individuals and could not be. That’s not how it’s supposed to work.

Second, however, Leslie Collum was never helpless. She was the prosecutor and prosecutors have power. When Wesley Clark showed her the detention statute and exposed the illegality of numerous detentions, she could have agreed and pressed the judge to release kids. I never saw or heard about her doing that ever. Rather, she became belligerent if opposed on any issue and was zealous in pursuit of extended detentions that were illegal. She seemed to love sending kids into the adult system, a result worse than the illegal arrests and detentions that formed the basis of our second class action. When the detention center asked the court to approve indefinite solitary confinement for the kid who gave rise to our first class action case, Leslie Collum argued vociferously in favor of torture. So the mousy, powerless character presented in the podcast was not a person I knew in over about a decade of practice in that court.

The problem with this distortion is that it absolves prosecutors of responsibility for their role, and perpetuates the dangerous myth that this system resulted from the idiosyncratic narcissism of Donna Scott Davenport. That is not true. Prosecutors have immense responsibility to wield their power fairly, honestly, wisely and to follow the law. If you feel powerless as a prosecutor, get out of the job. Moreover, the idea of the prosecutor without power further absolves the rest of us from our joint responsibility to our youth.

The Lawyer in the Wrinkled Suit

The podcast talks about Wesley Clark describing a lawyer wearing a wrinkled suit that looked like he pulled it out of his trunk. I won’t name the lawyer, but I know what this is about. This distortion is unfair because it makes juvenile court lawyers look like lazy slobs. Some may be, but this guy wasn’t.

This description also seems to imply that the juvenile court lawyers should be sharp dressed lawyers in high dollar suits with high dollar hair cuts. But why was this guy wearing a bad suit? One big reason exposes another major flaw in the juvenile justice system that the podcast fails to mention. As an expression of our collective will, the State of Tennessee pays lawyers in juvenile court next to nothing. If juvenile court is the “bottom rung” of the legal profession as the podcast describes, a big reason is the compensation. In Tennessee, we pay juvenile court lawyers $50 per hour, and cap the number of hours for which they can get paid. Good luck going out and hiring a lawyer for even five times that much or ever getting a “cap” on fees. I know a lawyer in Nashville who charges $1400 an hour. So the system attracts people like Wesley and me who had other issues, or people just passing time in semi-retirement, or men and women willing to wear wrinkled suits and make next to nothing. The podcast basically mocks a poor man for looking poor without explaining why he is poor and how that hurts children and families.

Tom Castelli

The podcast presents the solitary confinement case as Wesley inspiring me to help him take down a system. I’ve discussed the reality and problems with the presentation in another section, but it’s appropriate to describe an important character omission here. Tom Castelli was executive director of the ACLU when we brought the case and agreed to join after we obtained an early victory. The ACLU has lots of problems, in my opinion, but Tom Castelli deserves credit for helping us achieve results in the solitary confinement case.

Tom took most of the early depositions in the case, Wesley took one. I was wrapped up in another trial so I think I only took one. Those depositions were crucial. Tom also reviewed my writing of briefs and provided helpful edits and suggestions throughout. For instance, Tom reviewed my brief to obtain the preliminary injunction; Wesley did not. The podcast unfairly credits Wesley as the driving force behind the case while leaving Tom out. Wesley, while absolutely important, did not act alone, and neither did I.

The ommission of Tom Castelli from the story contributes to a false narrative that these cases are easy or individualistic, or that any brand new lawyer could do this. Tom’s skill and experience were crucial.

Moreover, the podcast describes the Hobgood arrests in its first episode. These arrests would come to start the process of first Wesley then another lawyer, Kyle Mothershead, and me looking more closely at the County’s arrests of kids. We became more interested because Wesley and I represented some of those kids. We represented those kids because Tom Castelli asked us to do it. We were working with him on the solitary confinement case at the time. That representation led directly to the second class action that is the main thrust of the podcast. Tom was important.

The County Commission

Rutherford County spent millions of dollars in public funds to build a giant kid jail in 2007. That money was not spent in secret; rather, several public hearings were held before the decision was made. As part of the process, an expert report was prepared to determine the County’s needs. The expert recommended a much smaller jail with another facility focused on providing rehabilitative services. In open meeting, the County Commission rejected this proposal that would have cost the same or less.

As for solitary confinement, the policies describing the County’s dedication and complete reliance on the practice was set forth in black and white, impossible to miss terms that were also approved by the County Commission in open meetings. Indeed, even after the practice was outlawed, the director of the detention center appeared before the Commission to complain that a tool had been removed from her toolbox as commissioners nodded in agreement. The policies related to unlawful detention were also approved by the Commission. Finally, they had numbers that showed tons of kids flowing through that giant kid jail they built. They never asked if that was unusual.

All of Us

One of the major reasons I included this section was to turn the tables on the podcast listeners. Many will be residents of Rutherford County or at least Tennesseans. the podcast mainly pillories Judge Davenport as the source of these problems, but is that even possible? First, she was elected. Twice. The public did that. Second, all of these practices involved other participants. The County Commission ratified all of this mess. They’re elected too. Third, none of these people are outliers in thinking draconian incarceration, solitary confinement and maximum punishment should be inflicted on youth. Right now the General Assembly of the State of Tennessee is pushing unbelievably backward-thinking new laws to increase these tendencies. Those jokers are elected too.

It’s really hard to blame all of these people without asking where they came from and how they got there. Accountability for individual actors is important, but it will never solve any of the problems in juvenile justice. The real problem is with us, the public. We do at least three important things to perpetuate harm to young people. 1. We ignore the problem altogether, acting as if the issue is not a community worry at all; these kids are just rogue outliers and individual bad actors. 2. We actively scapegoat these kids. This tendency is happening right now in Tennessee where new laws seek to push more kids into more jails. 3. We cling to outdated and wrong tropes like “spare the rod, spoil the child” and refuse to look at what the evidence shows works better, listen to new or different ideas or let go of some fanciful past where everything was wonderful.

All of us must change our thinking about youth if we want real change in the system. The politicians and media feed us what we ask to be fed, or tell us what to think. We all have to admit that some things are community issues and that we all have a role to play. Don’t listen to the podcast and think you did your part just by listening and shaking your head. Speak up, act out, make calls and change your own thinking.

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The Solitary Confinement Case-The Real Story