Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 2
Robert E. Shepherd, Jr.
An ABA Task Force Report, Part II
As noted in this column in the last issue, the Criminal Justice Section's Task Force on Youth in the Criminal Justice System has recently completed its work with the publication of a white paper entitled Youth in the Criminal Justice System: Guidelines for Policymakers and Practitioners.
The white paper acknowledges that since 1991 almost every state has increased the numbers of youth under 18 who are tried in adult criminal courts rather than in juvenile courts and notes that by 1997 the number of young people in adult prisons had reached 7,400. (Howard N. Snyder & Melissa Sickmund, JUVENILE OFFENDERS AND VICTIMS: 1999 NATIONAL REPORT 106 (1999); Kevin J. Strom, Bureau of Justice Statistics Special Report: Profile of State Prisoners Under Age 18, 1985-97 4 (U.S. Department of Justice, February 2000).) As a result, criminal justice system participants are encountering new problems and looking for guidance in how to deal with them. The purpose of the task force's white paper is to provide such guidance to those involved with youth in the criminal justice system. This column summarizes the general recommendations made in the white paper on the corrections stage of the process.
The task force articulated seven general principles to inform its decision making about the practices that should be followed in the various stages of the criminal justice process as follows:
- Youth are developmentally different from adults, and these developmental differences need to be taken into account at all stages and in all aspects of the adult criminal justice system.
- Pretrial release or detention decisions regarding youth awaiting trial in adult criminal court should reflect their special characteristics.
- If detained or incarcerated, youth in the adult criminal justice system should be housed in institutions or facilities separate from adult facilities until at least their eighteenth birthday.
- Youth detained or incarcerated in the adult criminal justice system should be provided programs which address their educational, treatment, health, mental health, and vocational needs.
- The right to counsel in the adult criminal justice system should not be waived by a youth without consultation with a lawyer and without a full inquiry into the youth's comprehension of the right and capacity to make the choice intelligently, voluntarily, and understandingly. If the right to counsel is voluntarily waived, stand-by counsel should always be appointed.
- Judges in the adult criminal justice system should consider the individual characteristics of the youth during sentencing.
- The collateral consequences normally attendant to the adult criminal justice process should not necessarily apply to all youth arrested for crimes committed before the age of eighteen."
These principles governed the decisions made by the task force about policy throughout the remainder of its deliberations.
Separation from adults
The task force urges that youths who are detained or incarcerated before, during, or pursuant to, proceedings in the criminal justice system should be held in separate detention or correctional facilities from adults. (See American Correctional Association Public Correctional Policy on Youthful Offenders Transferred to Adult Criminal Jurisdiction, B (Jan. 20, 1999).) Whether or not jurisdictions have been successful in achieving complete separation of youths from adults, compliance with all the other recommendations in the paper is essential.
Administrative staff, people in policymaking positions, and others hired to supervise youths in the adult system should all have education, training, and experience regarding the distinctive characteristics of children and adolescents, and they should have an understanding of treatment and rehabilitation. There should also be training on the special needs of female offenders, minority offenders, offenders with gender identity issues, and youths who are sex offenders or the victims of sexual assault or other abuse.
There should also be a definitive classification and screening system in facilities housing youthful offenders to assist in the placement and handling of children and adolescents, including those with special needs. There must be available a range of placements and facilities for youths, including juvenile facilities, youth correctional programs, intermediate institutions for youths alone, community-based programs, and intensive probation.
Because the safety of youths in the adult system is an overriding concern, institutions that house either detained and/or sentenced offenders must take special steps to protect this population. Appropriate individual classification instruments must be designed that recognize and take into account a variety of issues, including age, social history, institutional history, previous record, physical and mental development, and the charged offense.
Initial classification must take into account suicide risk; medical needs, including a determination of the existence of communicable or chronic illness; medication needs, including mental health and substance abuse screening; and consideration of special education requirements. The classification process should provide for regular, consistent, periodic, and meaningful reclassification in light of the changing development of children and adolescents.
Because appropriate classification decisions can only be made when staff have complete information about a youth and the ability to thoroughly assess it, procedures should be in place to allow intake staff to promptly secure all relevant medical, psychological, educational, treatment, and correctional records concerning the youth as part of the classification process. The design of both pretrial and postconviction correctional facilities for youths must take into account the special needs of children and adolescents. Small, community-based facilities for youths are preferable to larger facilities located far from the families and support base.
Any disciplinary system established for youths in correctional facilities should take into account the fact that adolescence is a period in which youths typically challenge authority. This knowledge is relevant to determining whether verbal conflicts with staff actually threaten institutional security. The disciplinary system should reflect the basic fundamentals of due process and should be tailored to take into account appropriate sanctions for children and adolescents, including recognition that youths perceive time differently than do adults. Discipline should: (1) be proportionate to disciplinary infractions; (2) only be imposed consistent with clearly defined standards that are clearly known to both youths and correctional staff; and (3) be enforced consistently. Solitary confinement should be prohibited, although room or cell confinement should be permitted for the time needed for an agitated youth to regain calm or as a disciplinary sanction for a major infraction, and for no more than 10 days for a single incident. Chemical agents and physical restraints should be used only as a last resort, and only under strictly monitored circumstances.
Every institution should have in place a clear, easily understandable grievance procedure that allows youths to raise complaints about institutional programs, care, policies, conditions, personnel, and procedures. The use of private, for-profit facilities for detained and convicted youths should be approached with caution, as has been urged by the American Bar Association in a resolution approved by the ABA House of Delegates in February 1990.
Studies show that youths tried in the adult system recidivate at higher rates and with more serious offenses than those who have committed similar offenses, but are retained in the juvenile justice system. Therefore, notwithstanding the dominant punishment goal for incarceration in the adult system, public safety requires that youths in that system be provided certain services essential to reducing recidivism. Many youths in adult correctional facilities-including some convicted of violent crimes-will be released while they are still in the peak years for offending, and a growing number are released unconditionally at the end of their prison term. Consequently, a major focus in developing programs must be on equipping these youths to be productive, self-sufficient, and law-abiding citizens after their release from incarceration, and enabling them to resist reoffending. There should be equity in developing programs and facilities for male and female youths.
Many incarcerated youths are functioning below grade level, and there are a disproportionate number of offending youths in need of special education. Education should be compulsory for all incarcerated youths under the age of 18 who have not received a regular high school diploma or a GED. Education must be available for youths in disciplinary segregation as well. Basic education services should be delivered to students at an appropriate grade level, for the number of hours equivalent to those required by state law for the public schools, and in accordance with public school standards. All youths who qualify for special education and related services pursuant to the Individuals with Disabilities Education Act (IDEA) must be provided an appropriate education.
Vocational education and job training relevant and designed to meet the realistic demands of the economy should also be provided for all youths. Independent living skills should be provided for those likely to be on their own after release. GED programs should be offered in addition to the high school and college level programs, but these programs should not be encouraged for youths with the ability to meet the requirements for a regular high school diploma.
Youths in the adult system should have access to religious services and advisors, but participation should never be mandatory. Activities must be available to maintain good health and physical development. These activities are necessary to reduce the incidence of violent behavior and to assist in maintaining good order and discipline. The ability to participate in group activities is particularly important for youthful offenders who need to learn to interact appropriately with others.
Each detained or incarcerated youth should be provided a health assessment to detect problems needing immediate attention as well as to meet ongoing health needs. This assessment should screen for sexually transmitted and communicable diseases and other diseases, and should be done in connection with the classification process. When a youth taking prescription medication is initially admitted to a facility, all such medications should be continued in accordance with directions until a youth's medical needs have been fully assessed by a physician.
Appropriate confidentiality should be provided for youths who are screened for HIV or sexually transmitted diseases (STD) and who are determined to be HIV-positive or otherwise suffering from a STD. Gender-appropriate medical care should be provided for female offenders, including pregnancy screening and appropriate prenatal care when needed.
There should be general mental health screening and assessment for all youths upon admission to a facility. Other mental health programs should be in place to deal with the disproportionate incidence of mental health and emotional problems among incarcerated youths. Programs also should have in place substance abuse treatment programs that are appropriate for children and adolescents. They should provide specialized treatment for youths who are the victims of abuse or neglect, especially the victims of sexual abuse, and for youths who are sex offenders. Institutional medical professionals who deal with youths should be trained in adolescent health care, and nutritional planning should be specific to the dietetic needs of children and adolescents.
Frequent visitation with family members, including siblings, stepparents, children, and friends should be encouraged. This should include assisting with transportation for family members if practicable. Telephone contact at reasonable cost should also be available. The use of volunteers to visit and work with youths is to be promoted and encouraged. Volunteer mentors are particularly important for youths who have little contact with family or who have few or no visitors.
Correctional agencies should have policies in place to allow for reasonable access to counsel and inmate advocates. Confidentiality of communications between attorney and client is essential and should be assured whether communication is by mail, telephone, or in person.
Correctional agencies also should have transitional services for youths to assist them in returning to their communities. Youths committed to the adult system are likely to have few independent living skills. They may never have looked for a job, contacted an employment service, had a job interview, held a job, gotten a driver's license, arranged transportation, had a bank account, rented a room or an apartment, managed a budget, or paid bills. These "adult" experiences will pose challenges that may predispose them to failure unless good transition services are in place. Educational transition services are of particular importance for youths who are paroled or released while still eligible for public education services. Planning for services should begin sufficiently in advance of release to ensure that release into the community is not unduly delayed.
The task force acknowledged that youths are committed to the adult system as punishment for antisocial behavior, but it recognized that youths are not yet adults, either developmentally, emotionally, or physically. Thus, it recommended policies, procedures, and treatment designed to promote greater safety and security for the youths and for the staff who work with them. Similarly, the service and program recommendations are designed to make facilities operate more smoothly by keeping youths appropriately occupied in ways likely to facilitate better community adjustment upon release. Thus the protection of the community is fostered at the same time that youths are being sanctioned.
The white paper includes recommendations, appendices, an extensive bibliography, a discussion of relevant youth development issues, and statutory references. For a copy, contact Susan Hillenbrand at the ABA at (202) 662-1503, or e-mail firstname.lastname@example.org. It also is available through the Section website at www.abanet.org/crimjust/.
Robert E. Shepherd, Jr. , is an emeritus professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and former chair of the Section's Juvenile Justice Committee. Professor Shepherd served as reporter to the task force, but this summary of the white paper's recommendations has not been approved by the task force and the white paper itself should be consulted for the full language.