Since a peak in the mid-nineties, the number of juveniles placed into secure detention has fallen dramatically, in part to due to a decrease in juvenile crime, and in part due to an increase in pre-trial diversion programs and post-adjudication alternatives to incarceration. These programs, such as the juvenile drug treatment courts (JDTCs) I work with, seek to bring about behavior change and ensure public safety, without the iatrogenic consequences of incarceration.
However, as we pat ourselves on the back for the continual downward trend in juvenile incarceration, we should stop to acknowledge two unfortunate truths: 1. Despite the decrease in juveniles in detention on aggregate, the rate for minorities is actually increasing[i] (and thus the racial disproportionality within the juvenile justice system continues to increase – but that’s a whole other blog post); and 2. as a recent report from Pew found, almost a quarter of juveniles currently held in juvenile detention are there for non-criminal acts (such as status offenses or probation violations). This is despite numerous studies showing that detention is generally harmful to juveniles, and even flies in the face of public opinion; most people believe that juvenile detention should be reserved for the most serious juvenile offenders.[ii] Despite the vast (and highly commendable) reductions in rates of juvenile incarceration, there are still many young Americans treated disproportionately harshly by the juvenile justice system.
So, how did we get here? Despite making a conscious effort to reduce the rates of juvenile incarceration over the past 20 years, why are there still almost 10,000 children locked away for such non-crimes as truancy or missing a check-in with a probation officer? Part of the problem, as I’ve seen encapsulated through my work with JDTCs, is that courts struggle to develop a sufficient arsenal of sanctions which don’t include detention; it’s an unfortunate irony that the most commonly used sanction in programs that provide an alternative to incarceration is … incarceration.[iii]
Even the most caring judges, such as those who work with juveniles with substance use disorders in JDTCs, consistently ask, with a degree frustration in their voice, “If I can’t send the kids to jail, what can I do?” It’s a fair question and one that judges are often not trained to answer fully. The power of the judge ultimately stems from his or her ability to revoke liberties from an individual in response to poor behavior. Judges, therefore, need help from their JDTC teams when determining how to sanction a young person for poor behavior. All team members have a voice in this conversation and the fact that they may have different philosophies and might disagree is important, because each team member has a unique insight into the youth’s life, for example, treatment will know different aspects of it than probation. And then these unique aspects of the young person must be balanced against judicial fairness and the need to hold the youth accountable. No one at the table has the full picture, which is why all team member must contribute to best serve the youth.
These crucial dynamics were highlighted for me on a recent training our office conducted with a JDTC. We met a judge at odds with both her prosecution and defense attorneys, because she hated to use detention but had no other sanctions for the young people in her program. The prosecutor was upset because she felt (quite rightly) that poor participant behavior should elicit a response from the judge, not simply a warning not to do it again. Meanwhile, the defense attorneys were upset because the JDTC was meant to be an alternative to incarceration, and yet when the judge finally ran out of second chances for the kids, where did they end up? Yep, incarcerated.
But, to end on a positive note, through working with this JDTC team, and many others, our office has been able to provide courts with a wide variety of graduated sanctions, which are non-incarceration responses such as a verbal reprimand, curfews, electronic monitoring (where appropriate), or community service. There are also sanctions that can be beneficial to the youth, such as attending a job fair, writing a resume, or court-ordered participation in a prosocial activity (such as a sport or a creative pursuit). We help develop sanctions which can be delivered rapidly after the initial behavior, are proportional to the infraction, and beneficial to the young person. Detention, by contrast, is rarely any of these.
Teenagers will always push boundaries, and if the juvenile justice system can respond quickly and fairly to these transgressions, the likelihood of continued delinquent behavior decreases. The worst thing we can do is respond disproportionally, either by not acting or by overusing incarceration as a response.
Matt Collinson is a senior research specialist working on the OJJDP-funded Juvenile Drug Treatment Courts Training and Technical Assistance Initiative at the Justice Programs Office (JPO).