Fernandez case highlights the long-term implications of incarcerating youthful offenders

It was over in two minutes. No objections. No comments. No updates.

Thursday’s court hearing was held to set probation requirements on 19-year-old Cristian Fernandez, who didn’t attend. All the actual decision-making had taken place already, in a 30-minute meeting held behind closed doors, away from the seven reporters and photographers who had staked out the hearing.

This was the latest in a years-long string of court proceedings at which lawyers and judges decided the fate of Fernandez, who was propelled to international notoriety when he was just 12.

Left alone with his 2-year-old half-brother at their Alden Road apartment in March 2011, Fernandez beat David Galarraga so severely that the toddler spent two days on life support before dying at the hospital that is now UF Health. Fernandez, baby-faced and just over 5 feet tall, was charged by then-State Attorney Angela Corey with first-degree murder. He faced the possibility of life behind bars.

A team of heavy-hitting Jacksonville attorneys, including current State Attorney Melissa Nelson, stepped in to intervene. Fernandez ultimately pleaded guilty in February 2013 to the lesser charges of manslaughter and aggravated battery, and received juvenile sanctions.

It was a negotiation that Corey said she hoped would help the boy receive counseling, treatment and other help to keep him from re-offending. “A middle ground that would both punish and rehabilitate Cristian Fernandez,” she said.

So while his peers were experiencing the normal milestones of adolescence, like first jobs, learning to drive, going to prom and graduating high school, Fernandez was surrounded by razor-wire fencing and 24-hour supervision.

The goal of sentencing Fernandez to the Department of Juvenile Justice — which has the stated mission of turning “around the lives of troubled youth” with “prevention, intervention and treatment services” — was to equip him to, one day, get on with his life.

But, after seven years of incarceration, how does a 19-year-old begin to move on?

Though recent court hearings and documents have mentioned “circumstances” and “issues” that have developed in his life, the answer for Fernandez is still unknown.

However, those who have come before him have seen that the intervention elements of juvenile incarceration often fall short of offering the transformation advocates hope for. Other youthful offenders who served sentences similar to Fernandez’s said his transition won’t be easy. Experts say it’s hard for anyone to be incarcerated during such formative years, let alone a teen who has been the subject of international documentaries and repeatedly cited as a key example of Corey’s “cruel” nature as a prosecutor.

Studies that have looked at youth incarceration have found that it is connected to less education, a higher risk of re-offending and worse long-term health outcomes. Critics don’t see Corey’s “middle ground.”

“If the goal of the system is to maintain the highest level of public safety and give kids the best shot at redemption, then what we’re doing now is the exact wrong way to approach children who make the mistake of committing a felony,” said Scott McCoy, the Tallahassee-based senior policy counsel for the Southern Poverty Law Center.

“The state gets nothing out of it, except maybe retribution,” McCoy said. “It vindicates their interest for punishment.”

And while Fernandez’s case is unusual, it is not unique. In the last 11 fiscal years, 87 juveniles from Duval County have been charged with a murder or manslaughter offense not stemming from a vehicle incident or drug sales. Across Florida, there have been 860 such children.

‘I WAS COMPLETELY DISILLUSIONED’

Xavier McElrath-Bey was arrested for the first time at age 9. He’d stolen a candy bar.

When he was 11, he was incarcerated for the first time, for obstruction of justice. He and a friend had been playing with a gun when McElrath-Bey was accidentally shot. Not wanting to get his friend in trouble, he made up a story to tell police; they arrested him.

By 13, McElrath-Bey was a ward of the state and had a record with 19 arrests and seven convictions. At that same age, in July 1989, he was charged for his participation in the gang-related murder in Chicago of a 14-year-old boy.

Now 42, a free man after 13 years of incarceration, and the senior advisor and national advocate with the Campaign for the Fair Sentencing of Youth, McElrath-Bey said the 13-year-old version of himself who was raised in a tough part of the South Side of Chicago is “so far gone.” He looks back on his past now through the eyes of an adult, but also through the lens of a reform-minded advocate.

Because he was locked up during his seventh-grade year, McElrath-Bey never set foot in a real high school as a student. “Saved by the Bell,” a late-’80s, early-’90s sitcom about a group of high school-aged friends, became McElrath-Bey’s vision of a normal high school experience. There was no violence or gangs in the school, and it intrigued him.

“What if I wasn’t in prison? What if I was free? What if high school could have been somewhere safe?,” he said. “A part of me wanted to know what it was like to live a normal life like that. ... How amazing it would be.”

McElrath-Bey was charged as an adult but was allowed to stay in the juvenile system until after he turned 17, sparing him a few years in the Cook County, Ill., jail and a max-level state prison for adults.

“It’s highly important that a kid is kept in a nurturing environment,” he said, describing how adolescents’ brains don’t fully develop until their mid-20s. While he said juvenile lockup is no place anyone would want to be, it at least allowed access to more education, counseling and recreational time than the adult prison where he’d find himself later.

Incarcerating young people deprives them of a range of emotional experiences, the ability to create meaningful relationships and leaves them overall emotionally underdeveloped, he said. When he was released at 26, McElrath-Bey didn’t know how to user a pager or cell phone, he’d never had his own apartment, struggled to find a job and was overwhelmed by the public transit system, which he described as a “barrage of colors that shot straight at me.” His first night of freedom was spent in a homeless shelter because the halfway house that was supposed to take him was full.

“When you’re in prison you have this very Pollyanna perspective on the future,” he said. “Get out, go to the halfway house, get a job, save money, get your first apartment. ... First day, I was completely disillusioned.”

McElrath-Bey credits his first employer, Starbucks, with giving him a job with flexible hours so he could continue his education. McElrath-Bey now has a master’s degree from Roosevelt University’s Counseling and Human Services program. Providing support for those re-entering society is crucial to supporting their success, McElrath-Bey said, as is access to therapy to address the trauma of incarceration.

“You have to learn to live as an adult in prison,” McElrath-Bey said, “and then you have to learn to live as an adult in free society.”

‘IT’S NOT A GOOD DEAL AT ALL’

Cristian Fernandez was born into tragedy.

His mother was 12 and his father was in prison for the sexual assault that led to his birth. When Cristian was 2 and his mother 14, the two were placed in foster care together in South Florida.

Just months before Fernandez turned 12, his stepfather shot and killed himself in front of his family to avoid arrest on child-abuse charges. That’s when the family headed north to Jacksonville.

Despite all that, Corey, then the area’s head prosecutor, said his case was best handled in the adult system. After two years, Fernandez’s team of attorneys worked out a plea deal that would help him avoid adult prison altogether. It allowed him to plead guilty to the lesser charges of manslaughter and aggravated battery, and serve his time in a juvenile facility.

“Five years is better than life,” Tamara Lave, a University of Miami law professor, said back in 2013. “But five years in juvenile prison is no cake walk.” She worried whether Fernandez could get the proper treatment and be safe in the juvenile justice system.

Jeree Thomas, policy director with the Campaign for Youth Justice, represented kids in Virginia who were incarcerated in juvenile prisons.

“It’s like you put a young person who’s growing in a box, but they can’t grow anymore,” she said. “They’re stuck.”

They go all day, every day, with adults making decisions for them, and they must obey to get along, she said. They become institutionalized so deeply that upon release, they struggle with even very basic tasks, like tying shoes and ordering off a menu.

“What we know from adolescent brain development is they age out of this behavior, or, the behavior is connected to trauma, poverty and mental health,” Thomas said. “We need to look at the individual needs of that young person and their individual risk. What led to that situation? What are their needs?”

In a series of recent Supreme Court rulings, the justices have consistently held that children are different than adults. This conclusion is based on the consistent scientific findings that kids’ brains are still developing into their twenties, and they’re highly influenced by feelings of reward and peer-influence. Because of this, the high court has eliminated the juvenile death penalty and limited — at least, theoretically — when minors can be sentenced to life without parole.

Thomas said youthful offenders have their whole lives ahead of them, but yet they’re given no skills to help them get by once freed.

McCoy, with the Southern Poverty Law Center, said prosecuting Fernandez as an adult did nothing to further the goal of turning his life around. Saddled with a felony record, he’ll have a harder time getting employment, educational help and housing. All of those things, in turn, affect his ability to access health and mental health care, he said.

“If anything, what the state gets out of it is less tax revenue and more potential expense in services,” McCoy said. “It’s not a good deal. It’s not a good deal at all.”

‘I WAS STRUGGLING’

When Ellis Curry was 16, he never really thought the robbing and stealing he and his friends were doing was actually hurting anyone. Sure, they’d point their guns at them and take their money, but since they didn’t shoot them, it seemed OK.

Besides, that’s the kind of behavior that got him praise in his Arlington neighborhood back in the early 1990s.

“At the time, you couldn’t tell me I wasn’t the baddest thing walking the earth,” said Curry, now 41.

But on Nov. 4, 1993, someone did get hurt. Curry and three friends tried to rob 14-year-old Jeff Mitchell outside of Terry Parker High School, but when the boy resisted, Omar Jones, 19, shot and killed him.

Curry, the only juvenile of the group, reached out to the Mitchell family to express his remorse, and for that remorse, he received a shorter sentence. His co-defendants are all serving life. Ellis was released in 2005, after more than a decade in jail and Florida prisons. Soon thereafter, he began working with the victim’s father, Glen Mitchell, to tell their story of healing and forgiveness.

Released at 28, Curry said his first two months of freedom were the worst in his life — even worse than going to prison.

“I still had that pride of a man to where I didn’t want to ask nobody for help. That was the biggest downfall. I was struggling. I needed help, but I was afraid to ask for it. I know my family was watching me to see how prison affected me, so I acted just like them. But the whole time, I was struggling with small, little, minor stuff.”

Simple things, like walking around a store, riding a bus and crossing the street, were challenging. And, he said, how do you even begin to ask for help with something so basic? What kind of adult doesn’t know how to cross a street?

For a time, Curry thought maybe he should get locked up again and get his life sorted out from the inside. Prison had become comfortable, and everyone he encountered in the system had told him he’d be back behind bars eventually.

“All these challenges at one time? I was close to tapping out,” he said. “Now that I got a little taste of the free world, I guess I’ll go back and sit down and think about ways how I can do it better. ’Cause I don’t think I can make it now.”

He eventually found a welding job that paid $16 an hour, and now he keeps busy with welding, selling cars and teaching Jiu-Jitsu, as well as running a non-profit, CUTS, or Cleaning Up Today’s Society.

But even still, almost 13 years after his release, Curry has to keep himself calm when someone accidentally bumps into him.

“I have to check that,” he said. “I have to constantly tell myself that he’s not trying to measure me.”

Through talking with other formerly incarcerated people, Curry said he’s learned how trauma manifests itself differently in everyone. Curry is one of the founding members of the Incarcerated Children’s Advocacy Network, an offshoot of the Campaign for the Fair Sentencing of Youth that McElrath-Bey launched in 2014. The group has more than 70 members from 25 states, and comes together each year to talk about the issues unique to their situations. McElrath-Bey said they deal with the issues of guilt, remorse and feeling like no one understands them.

“It affects everybody differently,” he said. “I haven’t met two people it affected the same yet.”

‘FOR SOME KIDS, IT’S TERRIFYING’

Study after study points to worse outcomes for kids who are charged as adults.

Just Thursday, the Southern Poverty Law Center issued a report called, “Destined to Fail,” which outlines how many kids in Florida, once prosecuted as adults, effectively lose access to adequate schooling. A 2015 study from the Massachusetts Institute of Technology found that teens who are incarcerated tend to have “substantially worse outcomes later in life than those who avoid serving time for similar offenses” and are less likely to graduate from high school and more likely to end up in prison as an adult.

An issue brief from The Pew Charitable Trusts in 2015 pointed to multiple studies that show juvenile incarceration actually does not reduce recidivism.

According to the state Department of Juvenile Justice, 47 percent of the 742 kids released from a secure residential program in 2015-16 were punished for a new crime within 12 months of their release. These facilities are for kids considered high-risk or maximum-risk to re-offend, and include the one where Fernandez was placed.

Last year, an article published by the American Academy of Pediatrics concluded that incarceration during adolescence and early adulthood is “independently associated with worse physical and mental health later in adulthood.” The study looked at data from more than 14,000 adults, of whom 14 percent reported being incarcerated for at least some time in their early years.

“The juvenile justice system, initially created to rehabilitate youthful offenders, has become increasingly harsh and punitive,” the report said. “Our findings speak to an urgent need for pediatricians to: 1) prevent youth incarceration by addressing key behavioral and social determinants of health, 2) mitigate potential downstream health effects of youth incarceration.”

Thomas said there’s a perception that if young people are released once they’re legally of age that they’re developmentally adults, too.

“There’s really not a full appreciation of the amount of support that will be necessary for young people who have been incarcerated,” she said. Some of them don’t even know where they’ll live once released. The re-entry services available, Thomas said, are often “a mess.”

“For some kids, it’s terrifying,” she said. “Even if it’s horrible when you’re (in) there, there’s a level of consistency.”

It has not been stated in any of Fernandez’s court hearings where he’s lived since being released last month. His attorneys have declined to comment on anything relating to Fernandez or his case.

Donna Webb, chief probation officer for Duval, Clay and Nassau counties with the Department of Juvenile Justice, said they are rare, but there are cases in which a child is charged as an adult and receives juvenile sanctions followed by adult felony probation through the Department of Corrections — as is the case with Fernandez.

In these instances, Webb said, the DJJ works to make sure felony probation officers know what treatment the child has gotten, for how long, and what they need going forward.

For the “adult kids” — those who turned 18 or older while under DJJ jurisdiction — with no home to return to, Webb said there is transitional housing around the state, but there aren’t a lot of beds. The housing is not run by DJJ, but it does receive some department funding along with federal grants. Kids with sex offenses and violent offense are ineligible.

“When the youth are coming out and they don’t have a place to live, we’re going to know that,” she said. “So we start working with other relatives. There’s been times when we’ve placed kids with churches. Of course, there’s homeless shelters, but we don’t like to use those.”

The DJJ tries to help kids get state identification so that they can get jobs when released, and also offers counseling to families.

“The better you set them up, the less they go back to jail,” she said. “If you wrap them up in as many services you can find ... the chances of them being incarcerated again really go down.”

‘A PIECE OF YOU IS KIND OF LEFT IN THERE’

Two days were all that separated Hernan Carvente and the prospect of spending 18 years behind bars.

If he’d been two days older when he shot a rival gang member, Carvente would have found himself in Rikers Island — New York City’s notorious jail complex — followed by more than a decade in state prison.

Luckily for Carvente, he hadn’t yet turned 16, the threshold in New York state for automatically charging a teen as an adult. (Reform raising the age of adult prosecution has since been signed into law and will go into effect next year.)

Carvente served four years of a six-year sentence in a juvenile prison for the attempted murder, and was released five years ago when he was 20. By then, he’d missed his daughter’s birth, his own high school graduation and all the other normal moments that occur when one grows from adolescence into young adulthood. There was no easing into hands-on fatherhood, job hunting and going to college.

“When I was released, I had to jump into all of that,” he said. “I always think about how I missed those four years. I also missed the opportunity to do a lot more for myself, for my daughter, for my family.”

Carvente, now an alumnus of the John Jay College of Criminal Justice in Manhattan, works as the national youth partnership strategist with the national Youth First Initiative, which seeks to close youth prisons around the country. As he’s taken on the role of advocate, Carvente said, he has been intentional in making sure he talks openly about his own mental health issues as a result of incarceration.

“I still carry a lot. I have come to terms with anxiety. I’ve come to terms with depression,” Carvente said. “All of these things were exacerbated with incarceration.

“A piece of you is kind of left in there. The more time you spend in there, the more challenging it becomes to keep yourself grounded.”

‘SOME PEOPLE REQUIRE MORE CHANCES’

Those in Fernandez’s corner can’t help but wonder what might be different today if prosecutors had charged the 12-year-old as a juvenile with manslaughter — which is what he ultimately pleaded guilty to — instead of as an adult with first-degree murder.

If Fernandez’s case had been kept in juvenile court — as other cases of local kids charged with manslaughter have since been — fewer details about him and his case would have been made public. While juvenile court proceedings are considered public, their documents are not. In January, a 14-year-old Jacksonville boy was sanctioned to a “high-risk” juvenile facility, which most kids complete in 9 to 12 months. When he’s released later this year, it will likely be to little, if any, media attention.

Throughout the month leading up to Fernandez’s release from a juvenile facility in January, news coverage proclaimed him a “pre-teen killer” and “one of Jacksonville’s youngest killers,” and plastered social media with the mug shot of the then-12-year-old. While not inaccurate, advocates like McCoy said such headlines are “terrible.”

“He became this poster child, you know, and that media attention is going to have an impact on him and follow him,” McCoy said. “He’s notorious now. That’s going to make his life so much harder.”

Thomas said media attention is a double-edged sword. On one hand, it’s “really, really critical that lawmakers hear directly from young people and their families,” but, it also makes it hard to put their pasts behind them when they’re so public. Being recognized can affect school and work opportunities.

All of these caveats are not to diminish what Fernandez — or any other young offender — did, McCoy said. But it is crucial that he and others receive the support they need so that they don’t end up in trouble again.

“That is a real risk,” he said. “Unfortunately, our system is not designed to help people who are re-entering to deal with that risk. It seems more critical for someone who is still a young man like Cristian is.”

Thomas said there are some youth who might be best served in residential facilities, but “an overwhelming number of kids” don’t need that level of treatment. But, they’re taken away to facilities because no community-based alternatives exist. Once there, they’re not taught how to be productive adults.

“We don’t know what else to do,” she said. ”‘If we lock them away, we don’t have to deal with them for a period of time.’”

Carvente said juvenile facilities are filled with kids who have similar backgrounds of poverty, abuse and violence. Without a way to communicate those struggles to adults, teens act out to show they’re in pain.

Carvente said he wanted to prove that all the people who wrote him off as an irredeemable gang member were wrong about him — that he could change, and other kids could, too, with the right support. For Carvente, that support came from James LeCain, the man who ran the college program where Carvente was incarcerated.

“Not every young person up and chooses to turn their lives around while incarcerated,” Carvente said. “Some people require more chances and opportunities than others.”

Editor’s note:

“When Kids Kill” is an extended examination of juvenile crime and punishment in Northeast Florida.

[This story was originally published by The Florida-Times Union.]