GPSOLO April/May 2008
Current Issues, Best Practices, and Promising Approaches
According to the 2006 edition of Current Population Reports published by the U.S. Department of Commerce, there are now more than 70 million children under age 18 in the United States, which is more than 25 percent of the U.S. population. This number is expected to exceed 80 million by the year 2020. What these numbers suggest is the magnitude and diversity of the issues affecting children in this country, particularly those children at risk who fall into the juvenile justice system.
This growing problem has received national attention, particularly within the ABA. Karen Mathis, in her capacity as President of the American Bar Association, created the ABA Commission on Youth at Risk to undertake a year–long effort to identify the challenges facing this population. (For more, see the article "Hope for the Future" on page 48.) The Federal Bureau of Investigation in its 2002 report, Crime in the United States, reported that about 1.5 million youths under age 18 are arrested each year for crimes ranging from loitering to murder. In addition, more than 700,000 youths belong to street gangs.
In addition, research shows that young people engage in other risky behaviors. For example, according to the Office of Juvenile Justice and Delinquency Prevention (OJJDP):
- 10 percent had driven a car or other vehicle when they had been drinking alcohol.
- 18 percent had carried a weapon.
- 43 percent had drunk alcohol.
- 8 percent had attempted suicide.
- 53 percent of high school students had engaged in sexual intercourse.
History of the Juvenile Justice System
Until the twentieth century, there was little difference between how the justice system treated adults and children. Age was considered only in terms of appropriate punishment, and juveniles were eligible for the same punishment as adults, including the death penalty.
Over the course of the last century, attitudes toward children who committed crimes began to change. The term "delinquent child" rather than "criminal" began its development with the creation of the first separate juvenile courts, owing in large part to the development of the philosophy of "parens patriae."
Under this philosophy, criminal behavior on the part of juveniles was seen as a sign of a lack of parental care and control. Therefore, the state should step in and exercise supervision and control before the juveniles committed more serious crime.
The adoption of this concept allowed for different treatment of juveniles by the judicial system. However, parens patriae did not resolve all legal issues regarding juveniles. In fact, disparate treatment of juveniles remained a fact of life, particularly within the judicial system. This issue was ultimately addressed by the U.S. Supreme Court, beginning around 1960.
All states now have a "Juvenile Code" or "Children’s Code" that provides specific substantive and procedural rules for juveniles in the juvenile justice system. In addition to mandating state juvenile code requirements, the U.S. Supreme Court mandated constitutional due process standards in juvenile proceedings.
In the matter of a juvenile by the name of Gerald Gault (In re Gault, 387 U.S. 1, 87 S. Ct. 1248 (1967)), the U.S. Supreme Court established that a juvenile accused of a crime is entitled to the same due process rights guaranteed to adults, namely the right to counsel, the right to notice, and the right to confront and cross–examine witnesses, as well as the privilege against self–incrimination. This was a significant change. Previously, the attitude had been that children did not need these rights—the state was bound to act in their best interest under the parens patriae doctrine.
As a result of these decisions and the evolving research that has been conducted regarding children, we now have fully separate criminal judicial systems for adults and children. As an example, children are no longer "sentenced"; they are subject to a "disposition," and the focus in the juvenile system is not on punishment or retribution but rehabilitation and restitution.
Delinquency and Detention
Juvenile delinquency in the United States, because of its emphasis on rehabilitation and the remnants of the parens patriae doctrine or the requirement that the state act in the best interest of children, has become an increasingly complex subject. Research in this area is more sociological and behavioral than legal.
Some of the causes and conditions of delinquency are obvious: poverty, drugs, gangs, abuse and neglect, and truancy. It is also clear that there are higher rates of detention and probation within minority racial and ethnic groups. However, this understanding only scratches the surface. How do we address these issues in attempting to prevent delinquency? Whose responsibility is it to address these issues? What approaches should be utilized, and who pays?
We are confronted by a society that is becoming more complex, more mobile, and more dysfunctional. Teen pregnancy, suicide, smoking, running away, and the use of dangerous drugs such as methamphetamine have become common problems addressed in the juvenile justice system. In addition, children do not settle their disputes as they once did. Guns, knives, and other weapons are now commonly used. Unfortunately, the juvenile justice system is the dumping ground for many of these problems. One alarming statistic reported by the U.S. Surgeon General is that one in ten children in the United States suffers from a mental illness. Of those, 60 percent to 70 percent are children of color whose only access to mental health treatment is through the juvenile justice system. We spend approximately $12 billion a year treating these mental health issues.
Too many times, these issues are not seen or addressed until a child has been detained or incarcerated. Thus, detention of juveniles has become a major function of the juvenile justice system. However, we have learned that detention alone is not the answer.
Each year in the United States, approximately 600,000 minor boys and girls cycle through juvenile detention facilities after being arrested and while awaiting further legal action (data from 1998, as reported in Building Blocks for Youth, National Council on Crime and Delinquency, 2003; and National Juvenile Detention Association and Youth Law Center, 1998). Detention is not an equal opportunity program: Throughout the 1980s and 1990s, as the detention population grew, four out of five newly detained youths were youths of color (Annie E. Casey Foundation, 2002).
The majority of detained youths are not the older, violent offenders that the public assumes are under lock and key. Many are quite young. More than half are aged 15 or younger and a third are aged 14 or younger. Nearly 70 percent are not being held for violent offenses (National Center for Juvenile Justice, 1999).
Harsh conditions and over–crowding in detention facilities lead to increased reports of suicide attempts, stress–related illnesses, and psychiatric problems (National Juvenile Detention Association and Youth Law Center, 1998). Youths who had been in a detention center were more likely than those who had never been in a jail or a detention center to have used illicit drugs, alcohol, or cigarettes in the past year (National Survey on Drug Use and Health, February 27, 2004). Past–year substance abuse or dependence was almost three times higher among youths who had been in a jail or detention center at least once in their lifetime than among those who had never been in a jail or detention center (National Survey on Drug Use and Health, February 27, 2004).
The cost to taxpayers of operating one detention bed over a 20–year period is between $1.25 million and $1.5 million dollars (National Juvenile Detention Association, 2003). Yet, most detention centers are only able to warehouse children and do not provide the multitude of services necessary to properly address these children’s needs. It is clear that, for the most part, rehabilitation is a myth in juvenile detention centers.
Alternatives to Detention
Statistics such as these have prompted those in the juvenile justice system to consider alternatives to detention. The Annie E. Casey Foundation (AECF) has been at the forefront of this issue. Named after the mother of the founder of United Parcel Service, the AECF has spent millions of dollars through the Juvenile Detention Alternatives Initiative (JDAI) developing alternatives to detention and appropriate programs for those children for whom there is no alternative to detention. The idea is to minimize, not eliminate, the use of secure detention while preserving community safety. Clearly, there are children for whom detention is appropriate; these children present a significant flight risk or are a danger to themselves or others. However, it is clear that detention of juveniles has been used inappropriately in many cases.
For example, as a former children’s court judge, I had occasion to consider the detention of an eight–year–old child who had assaulted another child with a knife. I also had to consider the detention of children with mental illnesses and violent tendencies. Is detention appropriate in those cases? What about children who have no home and no parental supervision? We are often confronted with absent parents or family and a lack of shelter beds and no place for a child to go but detention. This is clearly inappropriate.
The purpose of the JDAI is to demonstrate that jurisdictions can safely reduce reliance on secure detention. The AECF is testing the hypothesis that detention reforms will equip juvenile justice systems with values, skills, and policies that will improve results in other components of the system. The JDAI’s objectives are to:
- eliminate the inappropriate or unnecessary use of secure detention;
- minimize re–arrest and failure–to–appear rates pending adjudication;
- ensure appropriate conditions of confinement in secure facilities;
- redirect public finances to sustain successful reforms; and
- reduce racial and ethnic disparities.
In attempting to reach these objectives, the various JDAI sites have adopted certain core strategies developed by the AECF (see www.aecf.org/MajorInitiatives/JuvenileDetentionAlternativesInitiative/CoreStrategies.aspx). Below, these core strategies will be cited, followed by a brief discussion of each.
First, "collaboration between the major juvenile justice agencies, other governmental entities, and community organizations is key. Without collaboration, even well–designed reforms are likely to flounder or be subverted. A formal structure within which to undertake joint planning and policymaking is essential." Too often, children’s issues have become a "turf war" where the parties do not proceed as if they are equals in the process. The court can exercise tremendous leadership in this area and use the power of the bench to bring people together.
"Next, the use of accurate data, both to diagnose the system’s problems and proclivities and to assess the impact of various reforms, is critical. Without hard facts, myths and anecdotes will rule the system and preclude agreement on key aspects of policy and practice." This is more of a problem than many realize. Unless the data collection system used is uniform among all of the parties involved, and it often is not, data collected runs the risk of being inaccurate and, worse, useless.
"Objective admissions criteria and instruments must be developed to replace subjective decision making at all points where choices to place children in secure custody are made." Many states are developing risk assessment instruments in order to objectively evaluate the need for secure detention. New Mexico mandates the use of their instrument by juvenile probation before detaining a child.
"New or enhanced non–secure alternatives to detention must be implemented in order to increase the options available for arrested youth. These programs must be careful to target only youth who would otherwise be locked up. Whenever possible, they should be based in those neighborhoods where detention cases are concentrated and operated by local organizations." This strategy requires that the community be involved in creating community alternatives to detention. The system is overburdened, and responsibility in this area needs to be shared with the community.
"Case processing reforms must be introduced to expedite the flow of cases through the system. These changes reduce lengths of stay in custody, expand the availability of non–secure program slots, and ensure that interventions with youth are timely and appropriate." This strategy requires leadership by the court and collaboration among probation, the prosecution, and defense counsel. This is where the parties need to be reminded that it is the "best interest of the child" that is paramount. The priority of these parties should be the prompt provision of referrals to services and prompt adjudication rather than the number of successful prosecutions or defenses they can obtain. Advocacy must be subordinated to the needs of the child. In my jurisdiction, for example, we enacted a simple reform whereby the prosecutor would send over a plea offer at the same time that discovery was sent to the public defender. This resulted in many cases being resolved within two weeks of the petition being filed.
"Special detention cases—youth in custody as a result of probation violations, writs, and warrants, as well as youth awaiting placement—must be re–examined and new practices implemented to minimize their presence in the secure facility." Again, leadership by the court is key because the court holds ultimate responsibility for ordering detention in many of these cases. Also, the prosecution and defense must collaborate to reach agreements on how to handle these cases. The majority of juveniles in detention are under 15 years of age, and many of these have committed probation violations such as truancy, possession of alcohol, curfew violations, shoplifting, or vandalism. Is secure detention appropriate, or are there alternatives such as increased supervision, house arrest, electronic monitoring, or placement outside the home that can be utilized?
"Reducing racial disparities requires specific strategies (in addition to those listed above) aimed at eliminating bias and ensuring a level playing field for youth of color. Change in this arena also requires persistent, determined leadership because the sensitive nature of these discussions and changes frequently provoke defensiveness and avoidance." In my experience, the vast majority of children in detention are children of color. In my jurisdiction, we have a large Hispanic population (about 45 percent) and a very small African American population (2 percent). Yet, 95 percent to 100 percent of the children in detention are Hispanic or African American. Are these children the only children committing delinquent acts? Why are they the only ones being detained? The answer may have nothing to do with ethnicity or race; however, it certainly does not mean that this issue should be ignored.
"Improving conditions of confinement is most likely to occur when facilities are routinely inspected by knowledgeable individuals applying rigorous protocols and ambitious standards. Absent this kind of consistent scrutiny, conditions in secure facilities are unlikely to improve and often will deteriorate." We must not ignore juvenile facilities as we routinely do with adult facilities. Today in New Mexico, children may not be incarcerated with adults. However, this was not the case until approximately 1975. And it still is not uncommon in small jurisdictions for children to be jailed in cells with or adjoining adults. This is a dangerous and unacceptable practice that is fraught with tremendous potential liability for your community.
In addition, essential programs—even school—are not routinely provided in juvenile detention centers. Simply warehousing juveniles does nothing to rehabilitate them, and we face the prospect of releasing these young people back into our communities without addressing any of their needs. Unfortunately, the recidivism rate for juveniles is very high because we fail to understand the nature of the problem. In response, the American Correctional Association (ACA) has developed national standards for juvenile facilities, which examine not only the physical structure of the facility but also medical, educational, and vocational programs.
There are no easy solutions to these difficult problems. However, four communities—Bernalillo County (Albuquerque), New Mexico; Multnomah County (Portland), Oregon; Cook County, Illinois; and Santa Cruz, California—have all been designated as "models" by the AECF.
What can we learn from the model sites? Cook County, Illinois, reduced its average daily juvenile population in locked detention from 682 to 420 between 1996 and 2005. Cook County developed alternatives to locked detention for young people who are not a serious flight threat or a serious risk of committing additional delinquent acts; the county developed community–based, evening reporting centers that offer constructive activities during afternoons and early evenings while allowing youth to stay at home and in school. Children are released to their community, and the community supervises them. As a condition of release, these youths are required to report to the center, where they learn or improve their social skills and are able to obtain vocational and educational support. These reporting centers can make referrals to such programs as anger management, substance abuse, and parenting. Cook County has saved more than $2 million annually in reduced detention costs.
Multnomah County, Oregon, substantially reduced the disproportionate confinement of minority youth by lowering the overall population in detention by 65 percent and enacting targeted strategies aimed at reducing disparities. Those strategies included culturally appropriate community–based alternatives, such as shelter care, home detention, and a day reporting center. Multnomah developed an objective, culturally sensitive risk assessment instrument and created a seven–person intake team to review each and every detention decision. The county expedited procedures to process cases, which reduced lengths of stay in detention and implemented non–secure sanctions for probation violators. As a result, the likelihood that an arrested youth will be detained is now about the same for all racial and ethnic groups. Prior to implementing these reforms, Multnomah County had actually increased the number of detention beds in its facility. Ultimately, the county simply accepted the fact that it had been incarcerating too many juveniles inappropriately. Multnomah has been successful in converting the areas where juveniles were previously held into classrooms and other facilities where services can be provided—at a significant cost savings to the county.
Santa Cruz County, California, sharply reduced its detention population while concurrently experiencing a reduction in juvenile crime. Santa Cruz’s detention reform efforts saved the county millions of dollars by avoiding the construction and staffing of a new detention facility. Since implementing detention reform, the juvenile hall population has been reduced by more than half; it averaged more than 50 youth per day in 1996 but only 22 in 2005. In addition, juvenile felony arrests are down 48 percent, and misdemeanor arrests are down 43 percent. Santa Cruz used an objective screening process to detain only high–risk offenders, and it developed alternative programs and procedures for low– and medium–risk youth. Santa Cruz developed meaningful partnerships with community–based organizations to provide culturally responsive alternatives to detention, as well as programming from diversion to family preservation. The reduction of racial/ethnic disparities and disproportionate minority confinement has been an integral component of its detention reform work. As a result, Santa Cruz has significantly narrowed the gap between Latino youth representation in the general population and the detention population.
Bernalillo County, New Mexico, largely through the efforts of my good friend Tom Swisstack, the director of the Bernalillo County Juvenile Detention Center, reduced its detention population by 44 percent. In order to achieve this outcome, Bernalillo County methodically reorganized its resources, budget, and staff to focus on community–based treatment and innovative policies that cost taxpayers less money. Then the Bernalillo County Juvenile Detention Center convinced the county not to reduce its budget but to allow it to reallocate salaries for correctional officers and other correctional staff who were no longer needed to front–end services, such as counselors and community supervision staff. Bernalillo County was able to close secure units, saving the county hundreds of thousands of dollars. Some of the cost savings went into acquiring portable buildings outside the detention center’s razor–wire fence to house an alternative public school, a community–custody program, a day treatment program, and a mental health clinic in response to a lack of those services in the community.
These programs have all successfully reduced the use of secure detention for juveniles without increasing the safety concerns of their communities. In addition, they have saved their communities millions of dollars. All it required was the courage of these communities to realize that they had been doing something wrong. In a San Francisco study of high–risk youths, participants placed in an alternative program to detention were 26 percent less likely to be re–arrested upon completion of the program than similar youths released from secure detention facilities (Center on Juvenile Crime and Criminal Justice, 1999).
What is necessary is the courage to reallocate the resources used for detention into programs that truly address the causes and conditions of delinquency. It is clear that where the focus is solely on punishment and deterrence, the problem only grows larger.
Florencio (Larry) Ramirez is a former children’s court judge of the Third Judicial District Court in Las Cruces, New Mexico, and a former chair of the GP|Solo Division. He is of counsel with Carrillo Law, L.L.C., in Las Cruces and may be reached at firstname.lastname@example.org.