Juvenile Justice: Advancing Research, Policy, and Practice

Juvenile Justice

Juvenile Justice Advancing Research, Policy, and Practice

Edited by

FRANCINE T. SHERMAN and FRANCINE H. JACOBS

John Wiley & Sons, Inc.

1 This book is printed on acid-free paper. 

Copyright # 2011 by John Wiley & Sons, Inc. All rights reserved. Published by John Wiley & Sons, Inc., Hoboken, New Jersey. Published simultaneously in Canada. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978) 646-8600, or on the Web at www.copyright.com. Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, (201) 748-6011, fax (201) 748-6008. Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering professional services. If legal, accounting, medical, psychological, or any other expert assistance is required, the services of a competent professional person should be sought. Designations used by companies to distinguish their products are often claimed as trademarks. In all instances where John Wiley & Sons, Inc., is aware of a claim, the product names appear in initial capital or all capital letters. Readers, however, should contact the appropriate companies for more complete information regarding trademarks and registration. For general information on our other products and services please contact our Customer Care Department within the U.S. at (800) 762-2974, outside the United States at (317) 572-3993 or fax (317) 572-4002. Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. For more information about Wiley products, visit our Web site at www.wiley.com. Library of Congress Cataloging-in-Publication Data: Juvenile justice: advancing research, policy, and practice/edited by Francine T. Sherman and Francine H. Jacobs. p. cm. Includes index. ISBNs 978-0-470-49704-3; 978-1-118-10586-3; 978-1-118-10585-6; 978-1-118-10587-0; 978-1-118-09337-5 1. Juvenile justice, Administration of—United States. 2. Juvenile corrections—United States. 3. Juvenile delinquents—United States. I. Sherman, Francine T., 1955- II. Jacobs, Francine H. HV9104.J864 2011 364.630973—dc22 2011014932 Printed in the United States of America 10 9 8 7 6 5 4 3 2 1

To all the children, families, advocates, practitioners, and policy makers involved with juvenile justice, acknowledging the critical roles you play in creating a more humane and effective system

Contents

Foreword

Justice for America’s Children

xi

Marian Wright Edelman Preface

xv

Francine T. Sherman and Francine H. Jacobs Introduction

xvii

Francine T. Sherman and Francine H. Jacobs Contributors

xxvii

SECTION I Framing the Issues

1

Chapter 1 A Developmental View of Youth in the Juvenile Justice System

3

Marty Beyer Chapter 2 Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement

24

Kristi Holsinger Chapter 3 The Health of Youth in the Juvenile Justice System

44

Paula Braverman and Robert Morris Chapter 4 Children’s Rights and Relationships: A Legal Framework

68

Francine T. Sherman and Hon. Jay Blitzman Chapter 5 A Vision for the American Juvenile Justice System: The Positive Youth Development Perspective

Richard M. Lerner, Michael D. Wiatrowski, Megan Kiely Mueller, Christopher M. Napolitano, Kristina L. Schmid, and Anita Pritchard vii

92

viii

CONTENTS

SECTION II Understanding Individual Youth Chapter 6 Race, Ethnicity, and Ancestry in Juvenile Justice

109 111

James Bell and Raquel Mariscal Chapter 7 The Role of Gender in Youth Systems: Grace’s Story

131

Francine T. Sherman and Jessica H. Greenstone Chapter 8 Lesbian, Gay, Bisexual, and Transgender (LGBT) Youth and the Juvenile Justice System

156

Laura Garnette, Angela Irvine, Carolyn Reyes, and Shannan Wilber Chapter 9 Adolescent Parents and the Juvenile Justice System: Toward Developmentally and Socioculturally Based Provision of Services

174

Ellen E. Pinderhughes, Karen T. Craddock, and LaTasha L. Fermin

SECTION III Understanding Youth in Context Chapter 10 Parents, Families, and the Juvenile Justice System

197 199

Francine H. Jacobs, Claudia Miranda-Julian, and Rachael Kaplan Chapter 11 Violence Within Families and Intimate Relationships

223

Linda L. Baker, Alison J. Cunningham, and Kimberly E. Harris Chapter 12 Making a Place for Youth: Social Capital, Resilience, and Communities

245

Robert L. Hawkins, Maryna Vashchenko, and Courtney Davis Chapter 13 The Developmental Impact of Community Violence

Edmund Bruyere and James Garbarino

267

Contents

Chapter 14 The Right to a Quality Education for Children and Youth in the Juvenile Justice System

ix

286

Kathleen B. Boundy and Joanne Karger Chapter 15 Juvenile Prison Schooling and Reentry: Disciplining Young Men of Color

310

Sabina E. Vaught Chapter 16 The System Response to the Commercial Sexual Exploitation of Girls

331

Francine T. Sherman and Lisa Goldblatt Grace Chapter 17 How American Government Frames Youth Problems

352

Timothy Ross and Joel Miller Chapter 18 Youth Perspectives on Health Care

369

Rachel Oliveri, Ila Deshmukh Towery, Leah Jacobs, and Francine H. Jacobs

SECTION IV Working for Change Chapter 19 Youth-Led Change

389 391

Barry Dym, Ken Tangvik, Jesus Gerena, and Jessica Dym Bartlett Chapter 20 The End of the Reform School?

409

Vincent Schiraldi, Marc Schindler, and Sean J. Goliday Chapter 21 Collaboration in the Service of Better Systems for Youth

433

Anne F. Farrell and Diane M. Myers Chapter 22 Getting on Board With Juvenile Justice Information Technologies

Stan Schneider and Lola Simpson

456

x

CONTENTS

Chapter 23 Establishing Effective Community-Based Care in Juvenile Justice

477

Peter W. Greenwood and Susan Turner Chapter 24 Better Research for Better Policies

505

Jeffrey A. Butts and John K. Roman Afterword

527

Congressman Robert (Bobby) Scott About the Editors

531

Author Index

533

Subject Index

551

Foreword: Justice for America’s Children MARIAN WRIGHT EDELMAN President, Children’s Defense Fund, Washington, DC

The test of the morality of a society is what it does for its children. —Dietrich Bonhoeffer (c. 1940)

too often, early death. Others become trapped in the pipeline to prison later in life. At crucial points in a poor child’s development, more risks pile on—the loss of a parent, sibling, or friend; low teacher expectations; family or neighborhood violence; gang involvement—making a successful transition to productive adulthood significantly less likely and involvement in the criminal justice system significantly more likely. For children of color, who are disproportionately poor, the odds of youth detention and eventual incarceration as adults greatly exceed those for White children. Black children are 3 times as likely as White children to be poor. A Black boy born in 2001 is more than 5 times as likely as a White boy born that same year to be incarcerated at some point during his lifetime. And, in the past 20 years, sentencing for juveniles in our nation has become increasingly harsh and punitive and there has been an increase of 72% in the number of children held in America’s juvenile detention centers;2 thousands of children are held in adult prisons. As a number of the chapters in this important volume illustrate, the experiences of detained and incarcerated children in America are rarely rehabilitative. Children and teens who go through our nation’s juvenile justice

Has America turned her back on her most vulnerable children? America is the richest nation in the world. We rank #1 in gross domestic product (GDP), and we have more billionaires than any other country. Surely, a nation so blessed will take care of its children, who are its greatest treasure, its future, and its most vulnerable population. Yet the gap between rich and poor in America is greater than in any other major industrialized nation1 and is growing wider, dooming millions of children to the fate of growing up poor—if they survive infancy. Today, tens of thousands of poor babies in rich America enter the world with multiple strikes against them: born without prenatal care, at low birth weight, and to a teen, poor, and poorly educated single mother and absent father. Many are funneled from birth into what the Children’s Defense Fund calls ‘‘the cradleto-prison pipeline,’’ which traps children into life paths marked by abuse, illness, school failure and suspension, detention, incarceration, and,

1

OECD Report (2009), Growing Unequal? Income Distribution and Poverty in OECD Countries, notes that ‘‘the United States is the country with the highest inequality level and poverty rate across the OECD, Mexico and Turkey excepted.’’

2

Myers, D. M., & Farrell, Anne F. (2008). Reclaiming Lost Opportunities: Applying Public Health Models in Juvenile Justice. Children and Youth Services Review 30, 1159–1177.

xi

xii

FOREWORD: JUSTICE

FOR

system are condemned to long terms at large youth detention centers and adult prisons only to languish in cells surrounded by thick walls and razor wire. Too often, they are locked down for long periods of the day with no real opportunities for rehabilitation, treatment, or education. Many youth become hardened criminals while incarcerated, and at the end of their sentences they are released into communities that don’t have adequate resources to reintegrate them. Tragically, instead of helping disadvantaged youth become responsible adults, the juvenile justice system today has become a major feeder into the cradle-to-prison pipeline, leading young people into the adult criminal system. That pipeline runs through economically depressed neighborhoods and failing schools; across vacant lots where playgrounds and health facilities should be; and in and out of broken, understaffed child welfare agencies. By the time many children get arrested and are brought before a juvenile court, they have been provided far too little loving and thoughtful adult support—only to face purported child-serving systems that treat them unjustly. The high number of cases that juvenile courts administer—an estimated 1.6 million cases each year nationwide—is attributable to the fact that we, the adults, have let our most vulnerable children down. We don’t pay attention to early warning signs, such as a drop in grades or a reluctance to go to school, that indicate poor children need help; we don’t provide them with adequate mental health services or other counsel; and we have permitted the increasing criminalization of children at younger and younger ages for behaviors that used to be handled by families, churches, teachers, and community organizations. We seem to have forgotten that children are children, and that our job as adults is to guarantee their safe passage to successful,

AMERICA’S CHILDREN

productive adulthood by guiding them, nurturing them, protecting them, and teaching them. It was not always so. America’s juvenile justice system was once regarded as one of the most enlightened in the world. It was founded over 100 years ago on the principle that children, unlike adults, are still developing and that many of their perceptions, actions, and reactions are immature responses to an increasingly complex world. The early American juvenile justice philosophy taught that, with the proper guidance, children can learn new behaviors and attitudes as they mature. The emphasis was on rehabilitation, not punishment and retribution. In order to grow into responsible and caring adults, it was believed, youthful offenders need support, treatment, and care. The editors of this volume and authors of individual chapters urge us to remember that the children involved in our juvenile justice system are, first and foremost, children. Like all children, they need the love and guidance of adults—in their families, in their neighborhoods, in their communities—to develop their considerable potential and to thrive. And like all children, they need a nurturing school environment, the attention of caring and talented teachers who know their students can learn, and a rigorous curriculum that gives all students the skills to succeed in college and the workplace. The fact that risk factors such as poverty, discrimination, and personal tragedy add stress to their young lives and increase their chances of becoming trapped in the cradle-toprison pipeline should not cause us, the adults in their lives, to lower our expectations for their success or, worse, write them off or abandon them. Indeed, their increased vulnerability should make us redouble our efforts to give them the support and care they sorely need. Repeatedly, in the chapters of this volume, we are reminded that deficit- and

Foreword: Justice for America’s Children

punishment-based approaches to juvenile justice only feed the pipeline to prison and that when we identify children’s strengths and build on those strengths intentionally and consistently, we can help children in the juvenile justice system grow and thrive. In the pages that follow, you will meet children involved in the juvenile justice system who would have benefited from a coordinated, caring, and developmentally appropriate system of support. There is Marco, a young boy who initially did well in school and loved science but whose grades dropped when he became sad and fearful in middle school because he was terrorized by gang violence in his neighborhood and witnessed the murder of a friend; no adults picked up on signs of his stress or bothered to check in with him to see what was going on. As his fears grew, Marco succumbed to pressure to join a gang ‘‘for protection’’ and, before long, he was charged with being an accessory to a crime in a drive-by shooting. You also will hear from Grace, an intelligent and outspoken young girl of color who, shortly after her placement in a foster home (a placement she perceived as punishment), was charged with assault on a public employee and ‘‘disturbing school assembly.’’ After Grace’s expulsion from school, she was shuttled among foster homes, residential placements, and secure detention, as the Department of Family Services and the Department of Juvenile Justice struggled over control of her case. And you will visit a juvenile justice detention center school where children 13–20 years old are regarded as ‘‘predators’’ by the adults in charge of their care and whose ‘‘sentences’’ are extended when they fall asleep in class. The authors place such stories in the context of the latest research and recommend best practices on child development that emphasize the importance of an environmental, developmental approach that builds on a

xiii

child’s strengths. The chapter on youth-led change introduces us to youth who have discovered, within themselves, immense resources not only to change themselves but to transform their communities, creating ‘‘virtuous cycles’’ (instead of ‘‘vicious cycles’’) that serve as positive feedback loops building on increasing strengths. The lessons in this book remind us that we can—and that we must—do better, for the sake of our children, their futures, and the sake of our nation. Incarceration should not be our society’s first or primary response to youth in trouble. Judges need to look for opportunities to offer poor, young, and minority defendants the same second chances most privileged youth can count on. These include alternatives to incarceration such as restitution, community service, electronic monitoring, drug rehabilitation treatment, or placement in a ‘‘staff secure’’ (but not locked) community corrections facility. These youth in trouble must get the education, special education, mental health treatment, and other services they need. We must ensure that systems intended to support children actually help them, instead of serving as entryways into the cradle-to-prison pipeline. And as the final chapter in this volume makes abundantly clear, child welfare, juvenile justice, and education systems all need to collaborate to design individualized systems of support that build on each child’s strengths. There is already good work under way in a number of states and communities, and you will read about that work throughout this volume. Committed leaders and staff are working to rid the system of the abusive and punitive treatment of youth in custody that now too often pushes them into the adult criminal justice system. Reforms in Missouri’s juvenile justice system, often now referred to as the Missouri Model, have replaced large training schools and detention facilities with

xiv

FOREWORD: JUSTICE

FOR

small group programs located as close to youth’s homes as possible. These small programs offer a broad range of therapeutic interventions and are staffed by highly trained and educated staff who understand that constructive reform is best accomplished through positive behavioral supports and that the use of force must be kept to a minimum. The Missouri Model is being used to promote juvenile justice reforms in Louisiana; New Mexico; San Jose, California; and Washington, DC, and other jurisdictions are waiting in line. States such as California, Texas, and New York are also making progress in establishing alternatives to secure confinement. The Juvenile Detention Alternatives Initiative, begun by the Annie E. Casey Foundation 15 years ago, has reduced the number of youth in detention and in some places also reduced the number of juvenile arrests. The goal of these and other reforms is to create throughout our nation a juvenile justice system that will give children the support they need to grow into thoughtful, confident, caring, and productive adults as they transition to the community. We must bring to scale the reforms already under way that build on the strengths of children, youth, and families;

AMERICA’S CHILDREN

provide children and youth with individualized and comprehensive services in the least restrictive setting appropriate to their needs; promote evidence-based approaches; and assist and support the successful return of youth to their communities. These new approaches recognize the usefulness and importance of tracking outcomes for youth and responses to the new reforms over both the short and long term. At the same time, we must take action to address the root causes of a child’s involvement with the juvenile justice system so that we might keep children and youth from ever entering the system. We must eliminate child poverty, assure every child comprehensive health and mental health coverage and the early childhood experiences and education required to meet their individual needs, and offer families the supports needed to keep their children safe and in nurturing communities. This volume is a call to action, and I encourage everyone who reads it to take steps to ensure that all America’s children are given an equal chance to succeed. We must all work together to replace the cradle-to-prison pipeline with a pipeline to responsible, productive adulthood.

Preface F R A N C I N E T. S H E R M A N

AND

F R A N C I N E H. J A C O B S

The idea for this book grew out of our 5-year collaboration on the Massachusetts Health Passport Project (MHPP; first the Girls’ Health Passport Project), which was an effort to develop a system of continuous health-care access for girls, and then boys and girls, committed to the Massachusetts Department of Youth Services. Fran Sherman was the principal investigator of the core project to develop and implement MHPP, and Fran Jacobs and her team at Tufts University, of its evaluation. Through many hours of discussion, debate, and mutual education explicating MHPP goals and teasing out ways to evaluate them, we each discovered new, more critical ways of thinking about our own fields, along with new connections among the worlds of law, policy, and the social sciences. The experience was both refreshing and challenging. For us, that concrete, almost daily collaboration reinforced our belief in interdisciplinary conversations and understandings of juvenile justice and broader youth policy. It also reinforced the importance of looking behind practice (however successful you think you are being) to understand how, and the extent to which, it reflects current theory and research on the one hand, and is approaching attainment of its goals, on the other. That iterative process of doing and analyzing and then redoing and reanalyzing, is key to the development of sound and innovative juvenile justice policy and

practice moving forward, and was practiced, as well, in the development of this volume. In that spirit, we hope this book will stimulate both interdisciplinary conversations among students, academics, policy makers and practitioners, and links among practice, research, and theory to develop programs and policies promoting positive development for youth and their communities. We have both benefited from the support and dedication of talented students and colleagues. I (Fran Sherman) am grateful to the Juvenile Rights Advocacy Project clinic and seminar, which gives me the invaluable, daily opportunity to see juvenile law and policy through the fresh eyes and quick minds of second- and third-year law students; to Rebecca Vose and Tony DeMarco, my JRAP colleagues, who have made my work life both stimulating and fun and have been so generous with their time, giving me time to work on this volume, and Judy McMorrow, who has provided thoughtful and consistent counsel and friendship through all of my 26 years at Boston College Law School. I also want to thank my national juvenile justice colleagues, many of whom have contributed to this volume, who demonstrate the power of vision, leadership, devotion, and intentionality in implementing smart and effective juvenile justice practices and policies. The many youth and, particularly young women, whom I have represented xv

xvi

PREFACE

over 30 years, are an ongoing inspiration and education, and are, of course at the core of this volume. Likewise, I (Fran Jacobs) have much appreciated the support and encouragement of colleagues in both of my departments at Tufts—the Eliot-Pearson Department of Child Development, and the Department of Urban and Environmental Policy and Planning—many of whom, from distinct and distantly flung perches in the worlds of child development and public policy, have had encouraging words to share about the worthiness of this book. Rachel Oliveri, Ila Deshmukh Towery, Jessica Greenstone, and Claudia Miranda-Julian expertly helped us convert what was learned in the course of the MHPP evaluation into broader lessons for juvenile justice policy. And Maryna Vashchenko and Jessica Dym Bartlett provided expert substantive consultation and patient editorial intervention. At Boston College Law School, Classie Davis, Celeste Laramie, Kori Burnham, Lauren Whillhoite, Hilary Jaffe, Coleman Peng, Dan Maltzman, Mary Ann Neary, and Chester Kozikowski all provided important research and administrative support. A number of foundations supported the Girls’ Health Passport Project and the Massachusetts Health Passport Project in some way, and through that support helped stimulate the thinking behind this volume. They are: The Blue Cross Blue Shield of Massachusetts Foundation, The Jacob and Valeria Langeloth Foundation, The Boston Foundation, the Florence V. Burden Foundation, The Jessie B. Cox Charitable Trust, and the Gardiner Howland Shaw Foundation. We are grateful for their support and for the encouragement and insight provided by our grant administrators in each and every case. I

(Fran Sherman) have greatly appreciated the support and fellowship I have received over the years from my colleagues at the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative. The many lessons I have learned from them are woven through this volume. We both thank our universities, Boston College Law School and Tufts University, respectively, for providing us with essential research leave and support to work on this volume. We are also grateful to Marian Wright Edelman for her foreword to this volume; her career as an advocate for children is unparalleled and stands as an inspiration. My (Fran Sherman) boundless love, gratitude, and respect go to my three children, Leah, Sarah, and Jake Tucker for their warmth, kindness, intelligence, and senses of humor. This book and so much of my work, which is centrally about ways to support youth, is dedicated to my children for the way they honor their many gifts and opportunities. They are my inspiration, and I look forward to continuing to watch their adult lives unfold. And most of all, my gratitude and love go to my husband, Scott Tucker—my best friend, most solid support, and biggest booster. My (Fran Jacobs) deep gratitude goes to my family—first and foremost to my husband Barry Dym—and then to my children (Jessica and JJ Bartlett, and Gabriel Dym and Rachael Kaplan) and grandchildren (Molly and Jake Bartlett, and Eli Aaron Dym) for having the patience to see me through this process, and the good sense to avoid me on those crunch writing days. My 91-year-old mother, Miriam Jacobs, kept up on the progress of this project, celebrating with me the completion of each phase. This book, about children and families and the help that every one of them needs and deserves, pays tribute to them all.

Introduction F R A N C I N E T. S H E R M A N

AND

F R A N C I N E H. J A C O B S

Arthur Schlesinger Jr. (1986) observed that the history of social policy in the United States reflects fairly predictable cycles, completed in 30 years or so, between liberalism and conservatism—‘‘public purpose and private interest’’ (p. 31). These cycles of national involvement with issues of social concern invigorate our politics with new energy and ideas; their seeds are sown, during previous cycles, as forays of innovation that eventually coalesce. And although it can appear at the ‘‘end’’ of a cycle, that policy has not advanced much, if at all, in fact the process is recursive. For better or worse, we never do return precisely to where we were, and every so often, the change in policy direction is bold, significant, and permanent. Those of us who came of age in the 1960s and 1970s witnessed this transformational progress in civil rights, women’s rights, and the rights of persons with disabilities. And then there is juvenile justice policy. It is often noted that our national disposition toward delinquent youth and our approach to addressing their deeds and needs vacillate, unsurprisingly, and in the regular cycles that Schlesinger described, between punishment and rehabilitation. Modest changes are often consolidated before the pendulum swings once again in the opposite direction; reformers at either end tool up, readying themselves to undo or modify what has been codified in the ‘‘down’’ cycle. The prediction of the ‘‘coming of the superpredators’’ by John Dilulio (1995, November

27), then a professor at Princeton University, in the mid-1990s, may represent the apogee of the pendular swing of that time, the midpoint of that cycle. Broadly speaking, with the Juvenile Justice and Delinquency Prevention Act and the procedural due process revolution of the late 1960s and 1970s, juvenile justice policy had become more rehabilitative in orientation. Rates of juvenile crime arrests increased over the 1980s, however, and the population of juvenile offenders became increasingly racialized. The rise in juvenile violent crime arrests during the 1980s was a complex, multidetermined phenomenon (Zimring, 1998), however, and by 1994 juvenile violent crime arrests had already begun their long decline (Puzzanchera, 2009). Nonetheless, Dilulio capitalized on, and catalyzed, the growing sentiment among Americans that these youth were too dangerous to have in our midst. They were depraved, thoroughly incorrigible, and therefore needing to be removed from society to protect the rest of us. We know the end of this story: That onslaught never materialized—and indeed, juvenile crime statistics have evidenced steady improvement over the ensuing years (Puzzanchera, 2009). Nonetheless, the late 1990s witnessed a flurry of state legislation that expanded punitive approaches for juveniles, including making it easier to transfer youth to the adult correctional system. Meanwhile, reformers were preparing for the next cycle to emerge, and that cycle is, xvii

xviii

INTRODUCTION

indeed, upon us. There are many recent signs of progress toward a more rehabilitative posture in juvenile justice. The Supreme Court’s decisions in Roper v. Simmons (2005) and Graham v. Florida (2010) struck down the juvenile death penalty entirely and juvenile life without parole in nonhomicide cases based, in part, on grounds of child development and neuroscience. On the front end of the system, detention reform has significant national momentum, helping jurisdictions to be more accountable to youth and communities and reduce the use of secure detention to cases of greatest community and flight risk. On the back end of the system, led by the Missouri Model, states are reducing their reliance on secure youth institutions and building networks of community-based youth programs on principles of positive youth development. Around the country there is increasing use of evaluation—and evidence-based practices in juvenile justice systems—reflecting a more thoughtful and hopeful approach to meeting the goals these systems set for themselves. With greater interdisciplinary engagement, new ways to understand and support youth in the system have emerged. Positive youth development, ecological developmental theory, family systems theory, and new research on adolescent brain development, for example, are infiltrating programming and policy discussions in juvenile justice as well as the law. This is a moment of hope and possibilities; and perhaps these new possibilities will even direct us toward transformational changes in juvenile justice.

juvenile justice system within the context of their families, communities, and the multiple public systems that influence them, and are influenced by them as well. Although most of its chapters are scholarly in tone and content, other authors approach their topics with an activist orientation—a mix of perspectives we sought out from the volume’s inception. Chapter authors represent a broad range of disciplines and perspectives, also necessary, in our view, to engage meaningful juvenile justice policy. Following this ecological road map, Juvenile Justice: Advancing Research, Policy, and Practice is divided into four sections: The first, ‘‘Framing the Issues,’’ offers an introduction to the core elements of the juvenile justice system—the youth, the proposed developmental lens (positive youth development) through which to consider their behaviors and the system’s responses to them, and the law that undergirds and directs the system operations. Next, in ‘‘Understanding Individual Youth,’’ we provide more in-depth portraits of subgroups of these youth, according to characteristics that appear to influence their experiences in the systems— race and ethnicity, gender, sexual orientation, and family circumstances. Next, in ‘‘Understanding Youth in Context,’’ we open the lens and examine aspects of family, community, and formal and informal systems particularly relevant to youth’s system involvement. Finally, in ‘‘Working for Change,’’ we highlight some of the most promising innovations in juvenile justice; combined they offer a vision for the future of juvenile justice system policy.

THE ARCHITECTURE OF THE VOLUME

BASIC PREMISES

The organization of this volume, reflecting the forward-facing trends previously noted, is ecological in structure, considering youth in the

Although the chapters in this volume present a range of opinions and approaches to collecting and validating evidence, certain underlying premises are represented in the book—obvious

xix

Introduction

to us, but worth mentioning—that contribute to the volume’s overall point of view. &

&

&

Youth have a set of legal rights that are central to the structure and operation of effective and successful public systems and of society as a whole. The juvenile justice system is first a legal system, with youth involvement triggered by an alleged law violation. Youth do not lose their rights when they enter this system; rather, in significant ways, their rights are appropriately enhanced in counterpoint to the risk the system poses to them. The rights of system-involved youth, and of children generally, have a long history in the United States and can be understood to advance youth’s needs and autonomy. Youth law can also be understood ecologically, with children’s rights in relationship with those of their parents and the state. When the legal system works properly, it both respects and protects youth. The course of development is malleable, at least into early adulthood. While early experiences are core to a child’s development, a substantial, accumulating body of theory and research— reflected in recent Supreme Court and other court decisions—concludes that this developmental trajectory is not set by adolescence. Youth in the juvenile justice system, therefore, are still maturing, making them amenable to rehabilitation and, using value language, redeemable. This course of development is also multidetermined, involving millions of transactions and ‘‘inputs.’’ Urie Bronfenbrenner, the developmental

&

&

psychologist who coined the term ecological development for use in his field, imagined the child as the core piece in a collection of nested, Russian dolls—at the center of a set of concentric circles of influence, including families; communities; informal and formal, governmental and nongovernmental institutions and organizations; and societal values and beliefs. Youth are both shaped by and shape their environments, and interventions to affect individual development need to factor these contexts, centrally, into the equation. The juvenile justice system is in the position both to improve and to degrade the functioning and future prospects of youth in its custody. Even assuming a benign or helping orientation, the juvenile justice system as presently structured (a back-end, after-thefact,residualsystem)isnotwell-situated to achieve its rehabilitation goals; there is a poor match between what youth need and what the system can provide. Given the awesome legal power it holds, systemreformersare increasingly proposing adoption of the ‘‘First, do no harm’’ dictum—involvement only or primarily with those youth whose actions clearly demonstrate imminent risk to public safety. Juvenile justice system reformers understand that much of the essential work for youth occurs at local levels. It follows, then, that efforts should be directed at families and communities as the primary vehicles for positive change for youth. The juvenile justice process should be used to intentionally engage these levels of youth ecology with, for example, positive youth

xx

INTRODUCTION

&

&

&

development models of juvenile defense, expanded diversion, probation as brokers of community services, reduced use of secure detention and treatment, and expansion of community- and family-focused treatment at the back end of the system. The most promising juvenile justice policy includes respectful, authentic engagement of the full range of its participants. Although theory and research, and the wisdom of practitioners, are important cornerstones of juvenile justice policy, so are the beliefs, opinions, strategic recommendations, and visions for the future of system-involved youth, their parents and family members, their neighbors, and other members of the community. This input is critical to developing services that youth and families actually use, and to redressing the longstanding sense of disregard that these individuals have experienced. Interdisciplinarity in research, practice, and policy is critical to the development of a well-functioning system. Juvenile justice (like most of youth policy) is a naturally interdisciplinary field and should be intentionally approached as such. Practitioners, scholars, and advocates in law, developmental psychology, and sociology must make their work comprehensible across disciplines. Demystifying these disciplines for use by one another contributes to essential cross-system collaboration. Policy is also normative, informed by values. Research can get us only so far; at a certain point the decision is about the kind of society in which we want to live—inclusive or exclusive; more or less equitable, with more or

&

less of a generous civic impulse. Effective juvenile justice systems are selfreflective in this way, asking themselves what they stand for, how they want to be viewed, and the result is as much values-based as evidence-based. We argue that this is as it should be. Confronting issues of race and poverty is critical to any real progress— the beachhead to claim during this cycle. The juvenile justice system cannot be fixed until it deals with the issues of race and poverty that undergird it and give it its present shape. The disproportionate minority contact (DMC) mandate, and federal and state policy behind it, acknowledge the racial impact of much of juvenile justice policy, a fact that we are only beginning to address.

SECTION I: FRAMING THE ISSUES We begin this volume, and this section, with an introduction to five system-involved youth whose developmental trajectories Beyer analyzes in Chapter 1 using a strengths/needsbased developmental framework. Based on years of clinical practice, she argues that adolescent delinquent behavior results, in part, from immature thinking and the effects of trauma and learning disabilities, all common in this population. These factors, in addition to the youth’s strengths, seen within the context of their families, peers, schools, neighborhoods, and cultural communities, must be considered at all points of the juvenile justice decisionmaking process. In Chapter 2, Holsinger, as a criminologist, bases her portrait of youth in the juvenile justice system on nationally available data that detail their demographic characteristics, and

Introduction

the characteristics of the offenses that trigger and sustain their system involvement. The chapter includes an overview of the history, development, and current operations of the juvenile justice system, providing a shapshot of the youth involved at each of its phases. In Chapter 3, Braverman and Morris, both physicians, introduce these youth as health-care providers might encounter them: often highrisk, underserved young people with a host of unaddressed health, dental, and mental health needs. After presenting the youth’s profile from this vantage point, the authors conclude that the factors that predispose these youth to poor health outcomes are not a unique combination of risks, but rather are shared by other disadvantaged young people in the United States. The final two chapters in this section provide theoretical and empirical scaffolding for the remainder of the book. In Chapter 4, Sherman and Blitzman, lawyer and judge, respectively, provide an overview of U.S. children’s law, framed both in terms of autonomy-based and needs-based rights, and by the legal dynamic among child, parent, and state. They highlight the law of juvenile justice and child welfare systems, and also examine law relevant to education and health care, two central institutions for children. The chapter proceeds ecologically, acknowledging that children’s lives, including their legal lives, are related to their families, communities, and the social institutions surrounding them. Finally, in Chapter 5, applied developmental scientist Lerner and his colleagues argue that the contemporary juvenile justice system is predicated on a deficit view of the youth in its custody, and as such demonstrates a counterfactual and counterproductive understanding of the nature of adolescent development. The authors provide an alternative lens—the positive youth development (PYD) perspective—that capitalizes on contemporary

xxi

theory and research on adolescent development and has profound implications for the transformation of juvenile justice policy and programs.

SECTION II: UNDERSTANDING INDIVIDUAL YOUTH In Chapter 6, Bell and Mariscal, both lawyers and advocates, begin with an overview of the history, causes, and current status of racial and ethnic disparities in the juvenile justice system, placing contemporary federal policies purporting ‘‘race neutrality,’’ but actually disadvantaging Black and Latino youth, in the context of a deep historical legacy of systemic racism. They then examine promising policies and practices for reducing these disparities, arguing that despite its history, the juvenile justice system should strive to, and might achieve, fairness and equity for all young people. In Chapter 7, Sherman and Greenstone— from a legal and developmental perspective, respectively—describe the experiences of ‘‘Grace,’’ a teenage girl involved with multiple public systems, including juvenile justice. Through detailed analysis of primary interview data with Grace and others responsible for her care and supervision, and of court case material, they shed light on how Grace’s actions were interpreted and the responses they evoked. Their case study includes recommendations for implementing gender-responsive principles across these systems. In Chapter 8, Garnette, Irvine, Reyes, and Wilber (as lawyers, researcher, and system administrator) follow with a discussion of the experiences and needs of lesbian, gay, bisexual, and transgender (LGBT) youth in the juvenile justice system. The authors offer a framework for understanding healthy

xxii

INTRODUCTION

adolescent development within this population, and particular ways it can go awry, and present data on the often harmful effects of arrest and detention for LGBT youth. The chapter concludes with policy and program recommendations for addressing their needs. Finally, in Chapter 9, Pinderhughes and colleagues, from a cultural/developmental perspective, present the challenges to development— particularly identity development—and thus to parenting, encountered by the diverse population of incarcerated teen parents who are involved with the juvenile justice system. The authors recommend that the system adopt a more strengths-based orientation to these young parents, including facilitating contact with their own children during their confinement; this approach would increase the likelihood for continued engagement with their children after their confinement ends.

SECTION III: UNDERSTANDING THE CONTEXTS OF YOUTH The first two chapters in this section focus on families. In Chapter 10, Jacobs, Miranda-Julian, and Kaplan—representing a combination of policy, developmental, and clinical expertise— detail the current state of family involvement in juvenile justice, proposing explanations for why there is evidence of so little. They argue that more and broader participation is a critical feature of any juvenile justice system that seeks or claims to be ‘‘reformed,’’ and review some promising approaches to engaging families in the positive development and rehabilitation of their children. Chapter 11 focuses on the significant percentage of system-involved youth who have experienced and/or perpetrated, violence in their families. Baker, Cunningham, and Harris—clinical and developmental

psychologists—usefully identify ‘‘signposts’’ of the effects of family violence, for example, compromised school success or mental health, substance abuse, and early home leaving. They argue for greater attention to the role that family violence plays in the lives of delinquent youth, in the service of designing more effective prevention and intervention programs. Chapters 12 and 13 focus on communities as a context for the development of systeminvolved youth. In Chapter 12, Hawkins, Vashchenko, and Davis combine their expertise in urban policy, social work, and developmental psychology to offer a framework, rooted in resilience and social capital theory, with which to generate support for youth reentering their communities after incarceration. The authors suggest that juvenile justice reentry programs and policies, and those designed to prevent criminal activity in the first place, would do well to assess a youth’s access to positive as opposed to negative social capital, and then optimize opportunities to build on the former. In Chapter 13, Bruyere and Garbarino— from a developmental perspective—discuss the effect of risk accumulation, community violence, and other trauma on youth, some of whom go on to become involved with the juvenile justice system. The chapter then argues for ratification of the United Nations Convention on the Rights of the Child, seeing it as providing critically needed guidance for community development to support this population and reduce the need for future juvenile incarceration. Moving to the systems that interact with delinquent youth, and with other public youth-serving systems, the next two chapters examine the role of education before, during, and after incarceration. In Chapter 14, Boundy and Karger (lawyers who focus on educational policy) provide a detailed

xxiii

Introduction

discussion of the two most relevant federal laws—Title I of the Elementary and Secondary Education Act/No Child Left Behind Act and the Individuals with Disabilities Education Act—which together require states to provide a quality public education to school-age youth, with and without disabilities, including those in delinquent facilities. Despite these guarantees, they find the education of these youth is seriously compromised throughout. The chapter concludes with research-based practices, targeted at implementing effective teaching, learning, and planning for transition, meant to thwart this school-to-prison pipeline. In Chapter 15, Vaught, a scholar of urban education, brings an ethnographic lens to the issue of race, education, and juvenile justice, using a Critical Race framework to examine how institutional schooling practice and policy function—in one school within a juvenile prison—to hinder, complicate, and even likely scuttle altogether, community reentry for incarcerated young men. The dynamics explored here serve as a local window onto national education policy, raising issues of fairness about, for example, zero-tolerance policy, and policies that assure the quality of the schooling offered to system-involved youth. Sherman and Goldblatt Grace, from the perspectives of law, public health, and social work, examine the system’s response to the commercial sexual exploitation of children (CSEC) in Chapter 16, focusing here on girls. They describe the issue and then examine the range of international, federal, state, and local laws and policies, aimed at aiding and enhancing prosecution of perpetrators of CSEC (i.e., pimps, johns), and at providing protection and services to its victims. They show that, as state and local authorities implement practice and policy for this population, those two goals— law enforcement and victim protection—may

conflict, creating practices that serve neither goal fully and yielding results contrary to sound public policy and research. The chapter concludes with a recommended comprehensive response to CSEC. In Chapter 17, Ross and Miller bring youth policy and criminal justice together, and shift to providing a view of the landscape of government systems involved with youth issues. They argue that the structure of American government, combined with bureaucratic service delivery systems, lead to fragmented and, at times, inconsistent policies concerning youth, including youth caught up in the juvenile justice system. A number of solutions to these problems are offered, and the chapter concludes on a hopeful note: that efforts to address service fragmentation are improving the circumstances for some of these system-involved youth. This section concludes with Chapter 18, Oliveri and colleagues’ (developmental psychologists) qualitative study of the complex relationships among system-involved youth and the multiple systems meant to help them maintain good health. Beginning with a detailed review of the literature on healthcare access and utilization among this population, the chapter then analyzes primary data collected from youth regarding their health behaviors and preferences, and their use of health care. Its findings are useful to those working across public sectors interested in improving the health status of these youth.

SECTION IV: WORKING FOR CHANGE With Chapter 19, Dym and colleagues (psychologists and community activists) launch this section devoted to promising efforts to reform the juvenile justice system, with a case study of a

xxiv

INTRODUCTION

youth-led community development program— the Hyde Square Task Force (HSTF) in Boston, Massachusetts. Youth at HSTF, with the support and encouragement of staff, initiate, design, and implement advocacy projects to improve their own circumstances and transform their community. HSTF is nationally recognized as a model for community-based youth development, acting as an antidote to the forces that pull youth toward involvement in the juvenile justice system. We move from program-specific innovation to focus on systemwide reform in Chapter 20. Schiraldi, Schindler, and Goliday (experienced system administrators) thoughtfully advocate for systemwide reform to eliminate the training school and its mind-set, in favor of a graduated, primarily communitybased approach to juvenile justice premised on the tenets of positive youth development. After reviewing the troubled history of the reform school, and the promising alternatives now available, they argue that this route is the most likely to be able both to support youth and protect and enhance communities. In Chapter 21, Farrell and Myers (developmentalists interested in service systems’ operations) identify collaboration as the ‘‘new imperative’’ across youth-serving systems. They present the advantages of, and potential barriers to, collaboration, and offer suggestions for increasing service providers’ organizational capacities to engage in this way. After recommending the development of principles and guidelines for evaluating systems change efforts, Farrell and Myers conclude that systems providing services to at-risk and incarcerated youth must find ways to communicate, cooperate, and share accountability for outcomes. Chapters 22, 23, and 24 focus on the significant contributions that relevant, reliable, and accessible information can make to systems reform. In Chapter 22, Schneider and

Simpson, experienced data system consultants to child-serving public agencies, highlight how the quality, availability, and use of data can either promote or impede agencies’ abilities to plan, operate, and evaluate wisely. The authors review the role that data systems have played historically in these agencies, and the current status, overall, of their information systems; they then provide a detailed analysis of the technical, logistical, and resourcerelated challenges to be addressed before agencies can shift to data-driven decision making, using three JDAI (Juvenile Detention Alternatives Initiative) jurisdictions as successful case examples. In Chapter 23, Greenwood and Turner, experienced consultants on evidence-based practices for juvenile justice systems, review the current state of evidence-based practice, enumerating its demonstrable benefits, and noting the challenges it may pose for agencies adopting it. The chapter then provides the framework by which the Blueprints for Violence Prevention project validates program models as promising or efficacious, and includes an overview of successful programs. The authors conclude with examples of the implementation of such programs in selected jurisdictions. Finally, in Chapter 24, Butts and Roman draw on their extensive experience as program and systems evaluators to provide a clear-eyed review of the research approaches that inform evidence-based policy. Although they support the increasing intention, and practice, of using evidence to inform policy, they caution against overreliance on it, detailing the limitations of currently available methods and products of research and evaluation for the tasks juvenile justice systems have at hand. The authors conclude with recommendations for enhancing the applicability of research in this context.

xxv

Introduction

The volume concludes with an afterword from U.S. Representative Robert ‘‘Bobby’’ Scott of Virginia. Congressman Scott, a national spokesperson for youth and families in the juvenile justice system, notes prospective federal legislation that focuses increasing attention on less advantaged children, and exhorts the federal government to continue to demonstrate its leadership by enacting a number of pending federal bills and initiatives, such as the reauthorization of the Juvenile Justice and Delinquency Prevention Act and the Youth PROMISE (Prison Reduction through Opportunities, Mentoring, Intervention, Support, and Education) Act. In reflecting both the exciting advances and the considerable challenges currently evident in the juvenile justice system, Juvenile

Justice: Advancing Research, Policy, and Practice aims to make a modest contribution to the movement toward a rehabilitative, youth and community-centered vision of juvenile justice.

REFERENCES Dilulio, J. (1995, November 27). The coming of the super-predators. Weekly Standard. Puzzanchera, C. (2009). Juvenile arrests 2009. Washington, DC: U.S. Department of Justice: Office of Justice Programs: Office of Juvenile Justice and Delinquency Prevention. Schlesinger, A., Jr., (1986). Cycles of American history. Boston, MA: Houghton-Mifflin. Zimring, F. (1998). American youth violence. New York, NY: Oxford University Press.

Contributors

Linda L. Baker, PhD Centre for Children and Families in the Justice System London, Ontario, Canada Jessica Dym Bartlett, MSW, LICSW Tufts University Medford, MA James Bell, JD W. Haywood Burns Institute San Francisco, CA

Jeffrey A. Butts, PhD City University of New York New York, NY Karen T. Craddock, PhD Education Development Center, Inc. Newton, MA Alison J. Cunningham, MA Centre for Children and Families in the Justice System London, Ontario, Canada

Marty Beyer, PhD Independent Juvenile Justice and Child Welfare Consultant Cottage Grove, OR

Courtney Davis, MPP New York University New York, NY

Honorable Jay Blitzman, JD Massachusetts Juvenile Court Lowell, MA

Barry Dym, PhD Boston University School of Management Boston, MA

Kathleen B. Boundy, JD Center for Law and Education Boston, MA

Marian Wright Edelman, LLB Children’s Defense Fund Washington, DC

Paula Braverman, MD Cincinnati Children’s Hospital Medical Center Cincinnati, OH

Anne F. Farrell, PhD University of Connecticut Stamford, CT

Edmund Bruyere, MS Loyola University Chicago, IL

LaTasha L. Fermin, MA Tufts University Medford, MA

xxvii

xxviii

CONTRIBUTORS

James Garbarino, PhD Loyola University Chicago, IL

Angela Irvine, PhD National Council on Crime and Delinquency Oakland, CA

Laura Garnette, MPA County of Santa Clara Probation Department San Jose, CA

Francine H. Jacobs, EdD Tufts University Medford, MA

Jesus Gerena Family Independence Initiative/Hyde Square Task Force, Inc. Boston, MA

Leah Jacobs, MA, MSW University of California Berkeley, CA

Lisa Goldblatt Grace, LICSW, MPH My Life My Choice/Justice Resource Institute Boston, MA Sean J. Goliday, PhD CSR, Inc. Arlington, VA Jessica H. Greenstone, MS Tufts University Medford, MA Peter W. Greenwood, PhD Association for the Advancement of Evidence-Based Practice Agoura, CA

Rachael Kaplan, MSW, LICSW Clinical Social Worker Brookline, MA Joanne Karger, JD, EdD Center for Law and Education Boston, MA Richard M. Lerner, PhD Tufts University Medford, MA Raquel Mariscal, JD Senior Consultant/Annie E. Casey Foundation Watsonville, CA Joel Miller, PhD Rutgers University Newark, NJ

Kimberly E. Harris, PhD Centre for Children & Families in the Justice System London, Ontario, Canada

Claudia Miranda-Julian, MS, LICSW Tufts University Medford, MA

Robert L. Hawkins, PhD New York University New York, NY

Robert Morris, MD University of California Los Angeles, CA

Kristi Holsinger, PhD University of Missouri Kansas City, MO

Megan Kiely Mueller, MA Tufts University Medford, MA

Contributors

xxix

Diane M. Myers, PhD Assumption College Worcester, MA

Stan Schneider, MA Metis Associates New York, NY

Christopher M. Napolitano, MA Tufts University Medford, MA

Congressman Robert (Bobby) Scott, JD U.S. House of Representatives Washington, DC

Rachel Oliveri, MA Tufts University Medford, MA

Francine T. Sherman, JD Boston College Law School Newton, MA

Ellen E. Pinderhughes, PhD Tufts University Medford, MA

Lola Simpson, MS Metis Associates New York, NY

Anita Pritchard, PhD Florida Atlantic University Boca Raton, FL

Ken Tangvik, EdD Hyde Square Task Force, Inc. Boston, MA

Carolyn Reyes, MSW, JD Legal Services for Children San Francisco, CA

Ila Deshmukh Towery, PhD The New Teacher Project Boston, MA

John K. Roman, PhD The Urban Institute Washington, DC

Susan Turner, PhD University of California Irvine, CA

Timothy Ross, PhD Action Research Partners Brooklyn, NY

Maryna Vashchenko, EdM Tufts University Medford, MA

Marc Schindler, JD Venture Philanthropy Partners Washington, DC

Sabina E. Vaught, PhD Tufts University Medford, MA

Commissioner Vincent Schiraldi, MSW Department of Probation New York, NY

Michael D. Wiatrowski, PhD Center for Democratic Policing Williamsburg, VA

Kristina L. Schmid, MA Tufts University Medford, MA

Shannan Wilber, JD Legal Services for Children San Francisco, CA

Juvenile Justice: Advancing Research, Policy, and Practice Edited by Francine T. Sherman and Francine H. Jacobs Copyright © 2011 John Wiley & Sons, Inc.

S ECTION I

FRAMING THE ISSUES

Juvenile Justice: Advancing Research, Policy, and Practice Edited by Francine T. Sherman and Francine H. Jacobs Copyright © 2011 John Wiley & Sons, Inc.

CHAPTER

1

A Developmental View of Youth in the Juvenile Justice System MARTY BEYER

M

arco is a serious 14-year-old whose parents, born in Mexico, have been stably employed for many years. Although his family is close, Marco has faced numerous family problems, including the death of his grandmother who took care of him, and his parents’ preoccupation with the problems of his older siblings, leading to his feeling sad and unloved. Because his parents worked so hard, it felt ungrateful for him to disparage them. Marco’s parents had high aspirations for their children. When his older siblings dropped out of school and had children as teenagers, the pressure was on Marco to be the one to graduate high school. Marco did well in school and particularly loved science. But he found his teachers were overly critical of him—in his view, because they knew his siblings, who had been problem students in the same school, and because some had racist attitudes. When his grades started dropping in eighth grade, the school did not initiate any special supports. He started spending time with dropouts, was suspended, and then arrested for a fight in school; he was diverted from the juvenile justice system but received no services. His parents’ disapproval and his own feeling that he was a school failure were difficult for Marco to bear. For several years, Marco had been increasingly terrorized by gang violence in his neighborhood. He witnessed the murder of a friend and worried every time he walked down the street. Marco had been seriously threatened three times in the 2 weeks before

this arrest. “I tried never to walk alone. If I did, I’d run to a safe spot where there were people. You didn’t have to look like a gangbanger. If you ignored them, they would jump you. If you ran, they would chase you. This is not the movies. In life, violence is real. A lot of people have died in my neighborhood. Death is always there.” Marco did not talk to his family members or friends about his sadness or fears. He did not realize how intense the pressure was and how having to contend with it alone undermined good decision making. Marco is emotionally needy, like a younger teenager, but he does not admit his desire for comfort and protection. He started spending most of his time with his brother and his friends, all several years older and in a gang. As he got more scared, Marco reluctantly went along with pressure from them to join their gang. Marco did not realize the risks of gang protection: “I now know that when I joined a gang it was not a smart choice, but I thought I had to have protection.” Working long hours with many family responsibilities, his parents assumed Marco was safe with his brother, and did not know that he had joined a gang, used marijuana, and was becoming alienated from school. The day before ninth grade began, a gang leader gave Marco, his brother, and a friend a ride home. Unbeknownst to Marco, they were on their way to a drive-by shooting. “At first, I thought it wasn’t really going to happen. I realized it too late, but I could have gotten out of the car. But I was 3

4

FRAMING

threatened. He pushed everyone around. These things went on every day in the neighborhood, shootings and beatings to get revenge. He was mad about something done to him and he made us take revenge. It made no sense. But it seemed the only way out was to do what he ordered.” Marco talked about how sad he felt for the victim and expressed sympathy for the family. Marco did not object to being blamed and took responsibility for having bad judgment and not getting out of the car. He knows it was wrong, and if he had seen any choice, he said he would have left, but felt trapped even though he never intended to hurt anyone. How should the juvenile justice system deal with Marco? What criteria should it use to assess his culpability and impose an appropriate disposition? How does the system currently act in cases such as his? Juvenile justice systems make most decisions about youth based on age and offense. Yet age tells us little about what is behind an offense—for example, what precipitated it and what its meaning is for that individual—since each youth’s developmental progression is unique, often indexed in only limited ways to chronological age. The delinquent act itself also tells us little about the youth, since the contexts in which many offenses are committed are so complex. The intricate weave of factors, individual and contextual, that contributed to Marco’s involvement in a drive-by shooting illustrates how much more than age and offense must be considered in designing an effective rehabilitative service combination for him. However, employing a developmental framework allows for more hopeful and effective responses from the system and the community agencies that should be poised to help. In this chapter, I propose a developmental framework for making decisions regarding court proceedings, detention, and services, based on my training as a psychologist and my years of experience working with youth in

THE

ISSUES

juvenile programs and evaluating them for court. Its foundation, and the organizing premise of the chapter, is that the delinquent behavior of adolescents must be understood as resulting from their immature thinking and the effects of trauma and learning disabilities, which are ubiquitous among these youth. These core components are first introduced briefly below, and then I elaborate on each. I also argue for including youth’s strengths, and assessing their capacity for resilience within the context of their families, peers, schools, neighborhoods, and cultural communities at all points of the decision-making process. The chapter concludes with a demonstration of the richness of a developmental framework in vignettes of four system-involved youth, ages 13–16, with a range of offenses; Marco’s story is also included in the analyses.

CORE CONCEPTS To the extent that juvenile justice decisions are based on developmental concepts, these appear to be the outmoded, rigidly linear stagebased, and noncontextual theories of many years ago (Lerner & Steinberg, 2004). This view of development does not consider strengths, the effects of traumatic experiences, and environmental influences on youth. As a result, both in understanding the young person’s behavior and in designing services to change it, system decisions have not been developmentally sound, in the complex ways that we now understand development. For example, even though there is considerable research on the effects of trauma on children (Osofsky, 2004), it has not penetrated the system, perhaps because addressing the effects of trauma on delinquent behavior is not compatible with the simplistic view that offending is a bad choice. Probation and

A Developmental View of Youth in the Juvenile Justice System

juvenile facilities assume that youth control their behavior to avoid consequences and get rewards. What this fails to take into account is that some behavior is reactive to past victimization, and that traumatized youth may be unable to use rational decision making when the memories and anxiety from traumatic events are triggered. The challenges of learning disabilities have been well researched across academic and applied fields. Unfortunately, the application of research on learning disabilities, including processing problems, executive function difficulties, and attention deficits, appears to have been confined to use in schools, not in the many other realms of children’s lives. The school—in either the juvenile facility or the community—is expected to manage disabilities as they pertain to education, rather than helping everyone involved with the young person understand that they affect the youth’s behavior generally, and use this understanding outside the educational setting. In juvenile justice, disabilities are seldom used as a lens to understand the offense or facilitate behavior change. Instead, it is assumed that youth comprehend what to do and are simply being oppositional and making bad decisions. The notion that maturity should be assessed as a distinct developmental process, apart from chronological age, has a fairly long theoretical history in developmental psychology, but has only recently gained traction in juvenile justice policy and practice (American Medical Association, 2005). Research has demonstrated that adolescents are different from adults (Owen-Kostelnik, Reppucci, & Meyer, 2006; Steinberg & Haskins, 2008), but justice systems treat teenagers as adults in many ways (Bishop, 2000; McGowan et al., 2007). For example, even intelligent teenagers cannot appreciate the consequences of waiving their Miranda rights. Most teenagers say that

5

although they were told they had a right to remain silent, they believed they could not refuse to answer police questions. Typically, when they are asked what would happen if the judge heard afterward that they would not talk to the police, they respond that the judge would believe they were guilty. These beliefs demonstrate that they do not comprehend the meaning of the right to remain silent and their decision making is influenced by emotions (Grisso et al., 2003). Teenagers are also more vulnerable to psychological manipulation than are adults. In the police station without a lawyer, young people may well give statements in response to questions that reduce their self-confidence and make them feel hopeless (Ofshe & Leo, 1997; Warden & Drizin, 2009). While research has found that adolescents 16 and older have similar competence-related abilities to adults regarding understanding facts about court proceedings (see Scott & Grisso, 1997, for a review), these findings have been widely misinterpreted to mean that youth over 16 should be considered adults. In fact, even 16- or 17-year-olds with normal intelligence are often incapable of weighing alternatives, seeing the risks of taking a plea or going to trial, and looking into the future in discussions with their lawyers; youth with learning disabilities are even further compromised. Developmentally sound juvenile justice decisions must be based on more than research on cognitive and psychosocial growth in adolescence. The developmental framework proposed here is comprehensive— including immaturity as well as a clinical perspective on trauma and learning disabilities and using an ecological approach regarding the contexts in which the teenager is gradually maturing. Let’s consider the several components of immaturity first.

6

FRAMING

THE

ISSUES

THE EFFECTS OF IMMATURITY ON TEEN BEHAVIOR Adolescent development is not a smooth, uniform, linear progression—there are differences in maturity among youth of the same age and across domains within individuals. I have sketched out in this section a number of ways that immaturity affects behavior in these years. Immature Thinking In real life situations, particularly when influenced by peers and/or under the influence of substances, young people often have immature thought processes, including not anticipating, minimizing danger, reacting to stress, and seeing only one option. &

&

Not anticipating. Adolescents often do not plan or do not follow their plans and get caught up in unanticipated events. They usually view as “accidental” the unintended poor consequences of actions that adults could have predicted. For example, a young person could go with a group to an event and, on the way, a friend could have a conflict with a young person outside the group; a fight might break out, and several youth might be arrested for an assault they never imagined would have happened. Carrying, and even using, a weapon does not mean that a teen intended harm or thought that he or she would use the weapon. Often, teens feel driven to self-protection and never picture an injured victim. Minimizing danger. Risk taking is typical of adolescents who seldom can consider the worst possible outcomes of their actions (Furby & Beyth-

&

Marom, 1992; Steinberg, 2008). Youth do not perceive or weigh risks accurately, and indeed, it has been asserted that “it is statistically aberrant to refrain from such [risk-taking] behavior during adolescence” (Spear, 2000, p. 421). In comparison to adults, teenagers attach different value to the rewards that risk taking provides (Fareri, Martin, & Delgado, 2008; Scott & Steinberg, 2008). Difficulty in managing impulses is a normal characteristic of teens, partly because they have more rapid and extreme mood swings than do adults (Scott & Steinberg, 2008). Impulsively defending a friend who is teased or pushed can quickly escalate into a situation a youth will regret but did not view as risky. Similarly, youth get in trouble with parents, school, and/ or the juvenile justice system for texting they think is benign, and do not realize can be interpreted as threatening. Drugs and alcohol, also often not seen as risky, lower inhibitions and reduce teens’ abilities to use mature judgment; being high frequently contributes to delinquent acts. Reacting to stress. Stress affects the ability to weigh risks and to override impulses with rational thought, and adolescents are more susceptible to stress and emotional fluctuations than are adults (Hampel & Petermann, 2006; Larson, Moneta, Richards, & Wilson, 2002; Seiffge-Krenke, 1995; Spear, 2000; Wills, Sandy, & Yaeger, 2001). Decision making can be even more immature when a teen is scared, particularly if he or she has been mistreated in the past. A common form of immature cognitive processes

A Developmental View of Youth in the Juvenile Justice System

&

in adolescents is reacting to threat that adults might consider exaggerated. For example, a young person with no prior arrests or problems in school who jumps a subway gate without paying could get into a physical confrontation that leads to the serious charge of assaulting a police officer. Afterwards, his parents may find it difficult to understand how he could have felt so threatened. Seeing only one option. Adolescents only gradually develop the advanced cognitive ability to weigh alternatives simultaneously (Wigfield, Byrnes, & Eccles, 2006). In situations where adults see several choices, adolescents may believe they have only one. It is not unusual even for intelligent adolescents to imagine only a single scenario. When things do not unfold as they imagined, because of their immaturity, they behave as if they are incapable of adapting with another reasonable choice. For example, a teenage girl who thinks she is going shopping with a friend may be surprised when her friend encourages her to shoplift but may feel unable to leave, go home, or shop on her own.

Immature Identity Identity development is among the central tasks of adolescence (Erikson, 1959; Kroger, 2003). Becoming good at something, for example, doing well in school, arts, sports, or religious or cultural practices, is a cornerstone in the development of a positive identity, and helps it to solidify. Many system-involved youth have not experienced success, particularly in school; often, they feel marginalized.

7

Having an unformed identity makes them more vulnerable to involvement with delinquent peers. For most teenagers, belonging to a family provides the basic architecture for identity development. Family provides cultural, religious, and other values that are important to the teenager’s self-definition: sometimes the youth’s values remain consistent with his or her family, and sometimes he or she separates from the family’s values. Identifying with peers is another important aspect of self-definition; group membership is necessary for a young person to feel valued. The process of developing a stable identity takes time, during which young people need approval from family and peers. An ecological approach to understanding teenagers in the context of all their relationships—particularly family and peers—recognizes that development is influenced in complex ways by these interconnected contexts (Garcia Coll, Akerman, & Cicchetti, 2000; Lerner, 2002; Spencer et al., 2006). Conflicting identifications, between two groups of peers or between family and peer expectations, may cause unpredictable behavior in a teenager, especially under stress. Even protective families find it challenging to ensure positive friendships for their teens, and a teen may have positive peers and still get exposed, often in unplanned situations, to peer coercion and/or pressure from the desire for peer acceptance. Some families think teens cannot be supervised, and others, whose authoritarian tendencies increase out of a desire to protect, instead overlimit the teen’s autonomy, both with potentially disastrous consequences (Dodge et al., 2006; Putnick et al., 2008). It is difficult for adults to help youth develop self-confidence to resist peer pressure when the need to belong is so strong. Families can be unaware when a teen, who seems the same at home, becomes

8

FRAMING

THE

ISSUES

more influenced by peers and negative school and neighborhood environments. Furthermore, in some neighborhoods, resisting the pressure to commit crimes or to seek protection from a gang itself puts the young person in danger (Fagan, 2000). &

&

Racial and ethnic identity. As their social networks expand, youth see themselves in multiple roles requiring different self-presentations. Racial stereotypes and cultural dissonance make the process of achieving a stable identity more difficult for youth of color (Cross & Fhagen-Smith, 2001; Luthar, 2003). Youth are vulnerable to racial and ethnic marginalization. Violence poses a complex series of threats to resilience for Black males, including aggression as an adaptive response to deal with victimization, which may lead to arrest and reinforces negative stereotypes (Graham & Lowry, 2004; Spencer et al., 2006). Girl identity. Experts disagree about how much the increase in arrests of girls represents a change in behavior as opposed to a change in society’s responses to girls (Zahn, 2009). Developmental research has identified stressors on girls that make them more vulnerable, especially during physical maturation and school transitions. For example, many 11- and 12-year-old girls become less outspoken and more preoccupied with perfection and fear being disliked; and this may contribute to an enduring sense of unworthiness affecting their involvement in delinquent acts (Beyer, Blair, Katz, Simkins, & Steinberg, 2003; Brown & Gilligan,

&

1992; Chamberlain & Moore, 2002; Hennessey Ford, Mahoney, Ko, & Siegfried, 2004; Wood, Foy, Goguen, Pynoos, & James, 2002a). A connection to others is the central organizing feature of development in girls, and their relationship focus and the struggle to be loyal, including worries about abandonment and disconnection, dominate girls’ thinking. Girls in juvenile justice include first-time offenders who were coerced by their older boyfriends. Many teenage girls report violence in their dating relationships. Though some confide in a friend, almost none talk to adults in their family or at school about being victimized in this way and the difficulty of extricating themselves. Traumatic experiences predict delinquency and risky sexual behavior, and most girls who have experienced significant trauma need, but do not receive, trauma treatment—including many who do not have PTSD diagnoses (Smith, Leve, & Chamberlain, 2006; see also Sherman & Greenstone, Chapter 7, this volume). Sexual orientation and gender identity. Harassment for gender-nonconforming appearance or behavior, a nonheterosexual orientation or nontraditional gender identity can lead to a serious loss of self-esteem (Galliher, Rostosky, & Hughes, 2004). Homophobic discrimination at school and in the community is common and hurtful to teenagers and can lead to youth missing school or activities because they feel unsafe (Majd, Marksamer, & Reyes, 2009). Youth who experience

A Developmental View of Youth in the Juvenile Justice System

antigay victimization in middle or high school are more than twice as likely to be depressed and have substance abuse problems and three times as likely to report suicide attempts than lesbian, gay, or bisexual peers who have not been harassed (Wilber, Ryan, & Marksamer, 2006; see also Garnette, Irvine, Reyes, & Wilber, Chapter 8, this volume). Youth whose parents reject their sexual orientation and gender expression are more likely to be depressed and suicidal; they may end up living on the street, which may, in turn, bring them into the juvenile justice system (Ryan, Huebner, Diaz, & Sanchez, 2009). Immature Moral Reasoning Much has been written about moral development during adolescence, stressing youth’s increasing responsibilities in relationships and awareness of how others will judge one’s actions (Eisenberg, Morris, McDaniel, & Spinrad, 2009). The practical application of adolescent moral development research to real-life reasoning under stress is complicated. Committing a delinquent act can be misconstrued as an indication that the young person did not know right from wrong and/or lacked concern for others. But youth may express strong family and religious values and are frustrated that they cannot explain why they used poor moral reasoning during the offense. Adolescents are generally moralistic, insisting on what should be and intolerant of unfairness (Smetana & Turiel, 2003). They may become involved in an offense naively in order to right wrongs, often out of loyalty. As a result, they may not express an adult understanding of the

9

effect of their offense on victims, despite the fact that their capacity for empathy with others may not be impaired. Next let’s turn to considering the role of trauma in the lives of these youth.

THE EFFECTS OF TRAUMA ON TEEN BEHAVIOR The incidence of posttraumatic stress disorder (PTSD) among youth in the juvenile justice system is up to 8 times higher than youth in the community in general (Abram et al., 2004; Kerig, Ward, Vanderzee, & Moeddel, 2009). Among nonincarcerated youth seen in juvenile court clinics, one in nine met criteria for PTSD (Brosky & Lally, 2004). In a study of 50 delinquents, all but two had experienced trauma, including repeated abuse and/or parent death and/or abandonment; at least a third were physically abused and a quarter were sexually abused; more than half the girls had been physically or sexually abused (Beyer, 2006). In my experience, trauma typically slows down development in children and can interfere with all aspects of a youth’s functioning. While other children are growing emotionally, the child coping with trauma is distracted from normal developmental tasks and is occupied with sadness and feeling powerless. Trauma causes disturbances of emotional regulation, social relationships, and attachment (Lieberman & Van Horn, 2004). Children who have been abused or were not protected from violence often blame themselves and have trouble trusting others (Cohen, Mannarino, & Deblinger, 2006). Many youth in juvenile justice have in the past been involved with child protective services and some are in foster care when they are

10

FRAMING

arrested. Children who are exposed to disrupted caregiving (separation from their families and multiple foster homes) are at risk for continued difficulty in emotional regulation and deficits in social cognitive processing (Price & Landsverk, 1998). Depression Associated With Trauma Depression is common but often not diagnosed in traumatized teenagers (Ney, Colbert, Newman, & Young, 1986). Their behavior problems become the focus rather than their underlying sadness, isolation, and loss. Depressed children typically express selfdislike, show distorted thinking, and have a greater dependence on peers, but being depressed is correlated with teacher and peer ratings of unpopularity (Cicchetti & Toth, 1998). Often, young people come to juvenile justice without having received trauma treatment despite persistent depression, aggression, and school difficulties (Wolfe, Rawana, & Chiodo, 2006). Aggression Associated With Trauma Aggression can be a defense against the helplessness common among traumatized children. Traumatized youth may misinterpret and be offended by relatively benign things that others say and react with combative selfpreservation. These young people often have had difficulty since childhood modulating their reactions and putting their feelings into words. They react negatively to outside controls and are often labeled oppositional (Ford, Chapman, Hawke, & Albert, 2007; Wolfe et al., 2006). Traumatized teens may not be able to stop these reactions because they see controlling adults as mean and unfair, to which past abuse has made them acutely sensitive. When adults threaten them, they reflexively

THE

ISSUES

protect themselves; even if the adults believe they are controlling a situation, the teen automatically reacts as if back in the position of being victimized. When their feelings are hurt, they are flooded with anger from the past, which they are unaware is out of proportion to the present provocation, and they lack the ability to calm themselves. Unless adults arrange an environment to meet their needs, this predictable reflexive reaction will be provoked repeatedly. Multiple placements cause more loss and anxiety, provoking fear reactions and reinforcing sensitivity to hostility, rejection, and perceived unfairness. Externalizing behaviors—behavior problems in school, substance use, and truancy—are correlated with extreme parental permissiveness, and internalizing behaviors—depression, anxiety, and self-destructiveness—are associated with extreme parental psychological control (Steinberg, Lamborn, Darling, Mounts, & Dornbusch, 1994). Furthermore, the problem-solving strategies that boys bring to adolescent and adult social situations are directly traceable to the lessons learned from dads . . . young boys who are aggressive and are low in pro-social behaviors . . . have fathers who are more likely to engage in angry exchanges with them . . . the [boys] who are most prone to break down when the going gets tough are those who have been raised with the idea that to admit vulnerability, even to themselves, is weak. (Kindlon & Thompson, 1999, pp. 102–104) Reactions to Bullying Youth who have been chronically picked on have low self-esteem and academic and peer

A Developmental View of Youth in the Juvenile Justice System

difficulties in school, leading to more teasing and bullying (Horowitz et al., 2004). Bullying keeps children from perceiving school as a safe environment. Other students fear that by associating with victims they may become targets. Sometimes victimized children become bullies themselves, and they tend to have more emotional problems than those who are victims only (Arseneault et al., 2006; Olweus, 1993). Pathologizing Trauma-Related Behaviors It is unfortunate that the effects of trauma on youth are often overlooked or misunderstood (see Sedlak & McPherson, 2010; see also Baker, Cunningham, & Harris, Chapter 11, this volume). The effects of trauma may significantly interfere with the young person’s life and put him or her at risk of delinquency, even those whose symptoms do not meet the PTSD criteria (Widom, 1994; Wood, Foy, Layne, Pynoos, & James, 2002b) (see also Braverman & Morris, Chapter 3, this volume). Adolescents with a history of trauma have high rates of alcohol and substance abuse; these youth rely on substances to escape sad feelings and bad memories (Giaconia, Reinherz, Paradis, & Stashwick, 2003). Trauma is considered a significant risk factor, accounting for numerous items in checklists of factors connected to delinquency or dangerousness (e.g., the Structured Assessment of Violence Risk in Youth [SAVRY] and the Massachusetts Youth Screening Instrument [MAYSI-2]), but is seldom considered in designing rehabilitative services. Too often, symptoms from trauma are misinterpreted as part of the character of the young person, rather than a guide to what is behind behavior that can be changed. Finally, I briefly discuss the effects of learning disabilities on the behavior of youth in the juvenile justice system.

11

THE EFFECTS OF LEARNING DISABILITIES ON TEEN BEHAVIOR About 17–53% of youth in juvenile justice systems have learning disabilities, in comparison to 2–10% in the overall child population (Kazdin, 2000; Sedlak & McPherson, 2010). Learning disabilities affect young people not only in school, but at home and in the community, particularly in comprehending, following directions, and establishing and maintaining relationships. Learning disabilities include a variety of problems in listening, remembering, prioritizing, and strategizing as well as reading and mathematics. Delinquents have higher rates of neuropsychological deficits as reflected in language, verbal intelligence, working memory, and reading. Of special interest are deficiencies in “executive” functions that are served primarily by the frontal lobes of the brain . . . [including] abstract reasoning, goal setting, anticipating and planning, self-monitoring and self-awareness, inhibiting of impulsive behavior, and interrupting an ongoing sequence of behavior in order to initiate a more adaptive behavior (Kazdin, p. 53). Attention deficit disorder (ADD) and attention-deficit/hyperactivity disorder (ADHD) are the most frequently diagnosed behavior disorders of childhood. It is estimated that at least 25% of adolescents (17% of males and 21% of females) in the juvenile justice system have ADHD, compared to 9% in the overall child population (12% of males and 5% of females; Eme, 2009). Distractibility and impulsiveness are prominent characteristics of attention deficit disorders, making these young people less able to stop

12

FRAMING

behaviors, which may contribute to delinquency (especially when they have immature cognitive processes and are unable to see alternative choices at the time of an offense). Difficulties with social skills are also common among children with attention deficits and, in my experience, often lead to indiscriminately seeking acceptance (even from delinquent peers). Some youth’s problem-solving skills are compromised by not accurately perceiving cues from peers and adults, typically attributing hostility to others and believing that aggressive acts will result in peer approval (Dodge, 2003). By the time the learning disability is identified, many youth lack the basic skills necessary to comprehend schoolwork and to get along with others. Often, the youth who is embarrassed by poor performance gets into a negative cycle of attention seeking that interferes with school participation. Some youths’ problem-solving skills are compromised by not accurately perceiving cues from peers and adults, typically attributing hostility to others and believing that aggressive acts will result in peer approval (Dodge, 2003). Truancy from feeling picked on by teachers and/or students and frustration with poor academic progress can begin early in young people with learning disabilities, and not attending school can lead to delinquency.

STRENGTHS OF YOUNG PEOPLE AND THEIR ENVIRONMENTS Youth have strengths that must be built on in designing supports and services to meet the needs driving their delinquent behavior (Eccles & Gootman, 2002; see Lerner et al., Chapter 5, this volume). Often, youth can be engaged in change when their strengths

THE

ISSUES

are recognized. Their aspirations may be connected to something they are or were good at, and what may motivate them to change is to get back on track toward achieving dreams. Although families are typically blamed as the cause of delinquency, most families also have strengths, and youth often take it personally when their families are criticized (see Jacobs, Miranda-Julian & Kaplan, Chapter 10, this volume). Peers and neighborhoods also receive blame for youth getting involved in delinquency, but positive peers can encourage the youth’s aspirations and neighborhoods can offer significant support (such as pastors, relatives, and other adults and athletic and artistic opportunities) (see Hawkins, Vashchenko, & Davis, Chapter 12, this volume). Schools are seen as failing to address youth problems before they drop out or are suspended or expelled, but schools also can meet youth needs with services that offer youth the opportunity for success. Through a developmental framework, juvenile justice can avoid pathologizing and instead identify the strengths and needs behind each young person’s behavior. Rather than viewing the young person as a “bad seed” likely to become an adult offender, developmentally sound services support the youth’s resilience so he or she can outgrow unacceptable behaviors.

VIGNETTES OF YOUTH IN JUVENILE JUSTICE The stories of four youth are presented next, including brief descriptions of their strengths; family, peer, school, and neighborhood contexts; immaturity; trauma; and disabilities. These vignettes demonstrate how a developmental framework can guide our understanding and treatment of these youth,

A Developmental View of Youth in the Juvenile Justice System

as well as our efforts to prevent systeminvolvement for others. Marco’s story is included, as well, in the analysis presented in Table 1.1. Dustin Dustin is a quiet 13-year-old Native American youth born on a reservation. His mother was 16, his father was incarcerated before his birth, and he was raised by his grandmother. When he lived with his mother, he periodically ran away to his grandmother because of his mother’s physical abuse. His mother married, and they moved across the country to live with his new stepfather when Dustin was in seventh grade, shortly before the birth of his brother. It was traumatic for Dustin to lose his extended family and strong cultural roots. His stepfather was young, had not parented before, and favored his newborn; his mother’s life centered around her husband. Dustin adjusted surprisingly well to his new school. He had several friends who lived nearby and he spent most of his time in their homes. The girl next door was his best friend, and he felt “adopted” by her parents, who took him to the water park and skating rink; he resented his family for not caring enough about him to do activities together. He worried about his stepfather’s drinking, which caused work and marital problems. His stepfather was furious when Dustin protected his mother when he was about to slap her. Dustin said his stepfather hit him and constantly reprimanded him for not doing household chores properly. Dustin’s mother and stepfather criticized him for getting poor grades, although he complained that he worked on his homework longer every afternoon than his friends. Initially, his teachers attributed his academic struggles to their assumption that the small reservation school he had attended from first to sixth grades was

13

inferior. Because he was so “shy,” his trouble concentrating and following directions was overlooked, and they were surprised that on his first standardized testing in late spring, Dustin scored more than three grades lower than his classmates. Although he was not referred for evaluation of attention deficit (without hyperactivity) and/or executive function deficits, Dustin was likely eligible for special education services to address disabilities, which would have improved his grades and self-esteem. During the summer, Dustin’s mother told him they had to move, but not back to his relatives. When he told his friend next door, she cried and Dustin said he held back tears. He was upset he would have to leave his friends and their caring families and adjust to a new school. The week of the offense, it came as a surprise to Dustin that his mother was sending him to live with a relative he did not know far from both his grandmother and where his mother was moving. He felt rejected, especially since his stepfather said it was his disobedience and poor grades that were making them send him to relatives who could discipline him. Early physical abuse, being separated from family members, chronic disapproval, worrying about his mother’s marriage, and the impending move was a significant amount of trauma. Dustin did not have anyone to confide in and internalized his feelings. Leading up to his explosion, Dustin was under extreme stress that compromised his typical immature thinking. When he walked in the door that night, Dustin said his mother immediately started yelling at him. He heated up some food and was watching television. His stepfather yelled at him to get off the couch and turn off the TV. He was real mean about it. I was still eating. He told me to hurry up. I got up and moved so he could lie down on the couch. I went into the kitchen

14

FRAMING

and put my dishes in the dishwasher. Then he yelled at me because I had turned the kitchen light on. It made me mad. I was sick of being yelled at and not allowed to watch TV in my own house. I can’t explain what happened next. I grabbed a knife from the dishwasher. Without thinking, Dustin lunged at his stepfather, cutting him seriously before he ran out of the house. Later, he understood that he had “bottled up all that anger at my stepfather and my mother and it all came out at once, but I didn’t expect it.” Behind Dustin’s aggression were complicated unmet needs to: &

&

&

& &

&

Understand that the loss and rejection he experienced are not his fault; Learn how to respond when criticized and not overreact to rejection; Learn how to express himself without holding his feelings in until he erupts; Feel successful in school; Recognize the effects of his learning disabilities on his concentration and decision making; and Not be separated from family.

These needs could be met by trauma treatment, services to learn how to compensate for his learning disabilities, coaching on expressing his feelings and not overreacting, and returning to live with his grandmother. Peter Peter is a childish, White 14-year-old who was traumatized by abuse by his mentally ill mother, and then by abuse in his foster home. Later, he was moved to his father and stepmother’s home. When he was in elementary school, Peter ran away repeatedly because of

THE

ISSUES

his father’s abuse. Child Protective Services again placed him in a foster home for more than a year. When he was returned, the school complained that his father was not cooperative in dealing with Peter’s academic and behavior problems. Peter remembers being picked on since second grade for being behind academically. As he got older, Peter was upset that he was teased for being gay. He said he always liked girls, but kids thought he was gay because “I’m small and soft.” He felt unfairly treated by the PE teacher and got Fs in PE because he was being harassed in the locker room and refused to change. Peter’s arms are lined with scars. “I was always cutting my wrists. My teacher saw it. My dad saw it. No one did anything about it.” Peter talked about being isolated and alone, tolerating physical punishment by his father and conflict with his stepmother. “I didn’t care about anybody. I just wanted to be dead.” Asked what made him get to that point in eighth grade, he responded, “Thinking no one cares, people making fun of me all the time. My whole class made fun of me for being gay and not being able to do math.” Because of past trauma, Peter was unusually sensitive to criticism. He could not articulate that he felt hurt when he was teased and embarrassed about being unable to do his schoolwork. After years of abuse, Peter experienced any “no” as another victimization and he reflexively reacted to protect himself. He had not learned how to prevent escalation or how to calm himself down when he was teased, cornered, pushed, or touched. Peter’s IEP (Individualized Education Plan) was blaming, focused on behavior control, and reflected no understanding of trauma-driven behavior. Peter got angry when he read his behavior intervention plan (BIP): “Peter’s motivation for inappropriate behavior and language toward peers and teachers is

A Developmental View of Youth in the Juvenile Justice System

avoidance of work and attention seeking.” He thought his IEP was wrong: “Why do they think I avoid work? I go to school. I try to do my work. I need help on a lot of things. I am frustrated when I can’t get more help.” After his arrest, a neuropsychological evaluation found “a severe attentional disorder, a slow rate of information processing, and memory and executive dysfunctions which constitute a significant functional disability” that interfered with Peter’s school performance as well as with interactions with family and friends. For years he had IEPs without the required evaluations, which could have identified his disabilities in order to design the proper combination of services to ensure that his social skills, attentiveness, reading, and math improved. Had instruction in the give-and-take of communication, how to avoid talking too much, how to read others’ nonverbal cues, and how not to misinterpret rules as mistreatment been initiated in the early elementary years when his social skills deficits were first documented, Peter’s behavior improvement might have prevented being picked on. His early depression and anxiety might have been reduced with improved peer relationships, although these were also symptoms of trauma that went untreated. The kids were picking on me, calling me gay every day. The teacher heard them and didn’t do anything. The PE teacher yelled at me. The counselor wouldn’t do anything. No one would help. Nobody cared. A kid called me a name, another kid tripped me as I was walking to my seat. I got angry. My teacher yelled at me to calm down. I got more out of hand. She came toward me, trying to corner me. When I get angry, I don’t think. I was telling her to

15

leave me alone. She was yelling just like my father. She pushed me. I told her, “You better not touch me again.” She pushed me against the cabinet. I went ballistic. I pushed her down, ran out of the school. Behind Peter’s aggression were numerous unmet needs to: &

& &

&

&

Learn to separate his past victimization from provocation in the present; Learn to calm himself before reacting; Understand his pool of anger and hurt and learn to be less sensitive to rejection and to express his anger without hurting himself or others; Understand his attention, processing, and executive function difficulties; and Be successful at something.

These needs could be met by trauma treatment, services to learn how to compensate for his learning disabilities, a home and school where he is not maltreated, and guidance for the adults to understand that their actions might prevent most of his behavior problems by avoiding power struggles and deescalating before he gets out of control.

Brandon Brandon is a bright, engaging African American 15-year-old from a loving family. His mother is proud of her two older children in community college and she is raising her young great nephew who had been neglected. Brandon’s father’s murder when Brandon was young led to his family’s move out of a high-crime area. Brandon’s arrest for selling marijuana shocked all of them. His siblings and mother

16

FRAMING

insisted that their family’s love, religious values, emphasis on school achievement, and strong work ethic made it inconceivable that any of the children could be a delinquent. Family members expressed regret for not realizing that his doing poorly in school and hanging around with kids who were not successful in school or athletics put him at risk. Brandon kept secrets from his mother for more than a year. His family said Brandon remained the same loving, childish, entertaining son and sibling at home, helping with his cousin and doing chores. But when he was out, he was using marijuana daily and paying for it by selling marijuana. Brandon’s life had changed significantly in the past 2 years, in a negative direction in several dimensions simultaneously. &

&

&

The loss of basketball. Brandon experienced a major, painful rejection when he was not invited to continue with the elite team he had been on for years. He felt humiliated, and lost a sense of belonging and identity that was critical to him. He stopped playing basketball altogether, believing his future as an athlete was over. Less attention from his mother. When he was in seventh grade, his mother lost her job and they had to move again. Her great nephew required a lot of her assistance when he was removed from his mother and had to adjust to a new family and school. Because Brandon was not playing sports, he spent less time with his mother, who had been at all his games. His brother’s leaving. When Brandon’s brother left home, he lost the daily friendship and guidance of the person to whom he was closest in his family.

THE

ISSUES

&

This marked the end of Brandon’s life at home playing video games, since his brother was his game partner from second to seventh grade. The loss of school as a place of success. For Brandon, like many students, seventh grade was a difficult adjustment—the work was more challenging and he felt the teachers expected too much. Although in elementary school he had met state standards, getting As and Bs, in seventh grade Brandon was below standard in math and reading, did not like his teacher, and failed a class. In eighth grade, he was absent 40 days (in contrast to nearly perfect attendance in elementary school), got Ds, and was suspended for getting into an argument. Not wanting to burden his mother, he kept his problems from her. His brother told Brandon “to turn it around. You are just being lazy.” A friend’s parent was monitoring her MySpace and complained to the school that Brandon wrote threatening statements about the assistant principal; he was arrested, put on probation, and suspended (even though he said he was just joking). His probation officer detained him for a week when he was suspended in the first month of ninth grade for having marijuana in his pocket at school.

Unaware of the seriousness of Brandon’s problems, his family viewed these as minor “incidents” due to his being unfairly treated at school and by probation. His mother was angry at the school for singling Brandon out: If he had been a White kid, the school would have given him help a long

A Developmental View of Youth in the Juvenile Justice System

time ago. If he had been White, his probation officer would have sent him to a drug program, rather than locking him up in detention. Brandon’s immature thinking included not being able to anticipate the long-term consequences of poor grades. He did not imagine that each day his choices about his schoolwork were taking him off the path of high school graduation and going to college on a sports scholarship. Brandon also minimized the risks of his secret life. He was smoking marijuana every day in ninth grade and believed that marijuana was benign. Brandon said marijuana gave him a “mellow mind,” and he liked being relaxed. The only problem he saw with marijuana was cost. Brandon also had an immature identity. Prior to seventh grade, Brandon was a successful athlete and student, staying close to his family and home. But he lost some of his family-centeredness and he lost his sportsfocused identity. Brandon did not want to turn his back on his close friends, with whom he had played basketball since elementary school. They smoked marijuana together, were barely passing in school, and none were playing high school sports. He was their supplier, believing he would never get arrested selling drugs just to people he knew. Behind Brandon’s illegal behavior were significant unmet needs to: & &

&

&

Be successful at school; Develop a stable, positive identity supported by successful peers at school; Talk about how much he has missed his father and brother; Learn how to get a “mellow mind” without using marijuana; and

&

17

Learn how to anticipate consequences, see risks, and make choices that will allow him to achieve his goals.

These needs could be met by coaching on getting involved with college-bound peers, decision-making skills, returning to sports, improving study habits, tutorial assistance, college-preparatory summer programs, and guidance for his mother in providing supervision and recognizing Brandon’s successes. Kristi Kristi is a 16-year-old biracial girl whose grandmother said she was “the perfect child until middle school: good grades, happy, nice friends, loved sports. She loved her mother; they had survived hard times together.” Her parents’ arguments and bitter divorce and her mother’s remarriage were hard on Kristi. She missed having her father at home, and by the time she was in fourth grade, the fighting between her mother and stepfather was frightening. “I was scared of him. He wasn’t working and was living off my Mom and me. I couldn’t understand why she took him back over and over.” Kristi developed an eating disorder in sixth grade after her stepfather was arrested for attacking her mother and Kristi when she tried to get help. Kristi’s soccer team was the center of her life for years, and her mother, grandmother, and father cheered for her at tournaments: “It was hard work to be on a travel team. It was an honor. We went to the state championship and met girls from all over. We did so well. We had so much fun.” After the game, Kristi and her friends got caught drinking and their coach kicked them off the team. “I was going to try out for the high school team, but I gave up. . . . It was a big mistake that I regretted.”

18

FRAMING

Her father talked about the vacuum that not playing soccer caused in Kristi’s life, observing that without the discipline of sports she “became less motivated to do well in school, had more worries about her weight, and did not have her good group of friends.” The combination of reactions to her parents’ divorce and her mother’s involvement in an abusive second marriage made Kristi susceptible to an exploitive relationship with an older male. With her worries about her appearance, the loss of soccer, and feeling less motivated academically, Kristi was flattered by his attention, and minimized keeping him a secret from her parents, who would not have approved. He was extremely moody, arguing with people for no reason. He hit me with his fists. He said the meanest stuff to me. And then sweet talk me, saying beautiful things. I told my best friend I didn’t want to stay with him, but I didn’t know how to break it off. I was so depressed. Kristi continued,

THE

ISSUES

Lacking experience, Kristi did not correctly assess many danger signals: “He would not let me go anywhere without him. His mood swings were extreme and unpredictable. He smashed things when he was angry.” His obsession that afternoon with wanting to run away with her was annoying, but she thought it was “just talk” when he kept coming back to the same subject for hours and was not satisfied with her telling him she was not leaving home. What Kristi did not know was that he had been using meth that day. She was shocked when he attacked her mother, stabbing her to death with a kitchen knife when she got home from work: “It was so quick; I was in shock, shivering and not understanding what was happening.” Threatening Kristi with the knife, he ordered her to get her mother’s car keys and wallet and made her drive to an ATM to withdraw the limit in cash from her mother’s account. When they were apprehended in her mother’s car, it did not occur to Kristi that the police would arrest her. She gave a simple statement about what had happened: I thought the police wanted information about what he did. I didn’t try to explain it to them. I didn’t understand what happened myself. I thought they knew I didn’t have any part in it and were going to take me home.

I was ashamed that I still loved him and his sweet-talking and hoped our good times would return. I didn’t ask for help because I didn’t realize I was over my head. I knew getting high with him and skipping school to be with him were wrong. But I thought I could quit him anytime.

Asked whether she told the police she had been kidnapped, Kristi responded that she thought kidnapping referred to a small child or someone being tied up. She added,

Kristi said she hid “how bad I felt about myself ” and did not know how to get counseling without burdening her mother. She told herself that her substance use was not a problem. She believed that she would get serious about school again and achieve her goal of college.

I was forced the whole time. I wasn’t dragged by my hair. But if I had refused, he would have made me. The look in his eyes was so threatening. In the car he was holding the knife. I didn’t have control, of course, I never did with him.

A Developmental View of Youth in the Juvenile Justice System

Her boyfriend told the police it was Kristi’s idea to kill her mother because she wanted to run away from home. In her state, 16-yearolds charged with murder did not have a hearing where a judge would decide whether they could be rehabilitated in juvenile court. Kristi was held for many months in an adult jail, fortunately supported by maternal and paternal extended family, before she was acquitted by a jury in an adult trial. Behind Kristi’s involvement in an abusive relationship were complex unmet needs to: &

& &

&

Recover from her parents’ divorce and her exposure to domestic violence, and understand the connection between her worries about loss of relationships and her eating problems and use of substances; Be proud of her academic performance; Learn how to have a good dating relationship without violence or being controlled; and Improve her ability to assess the riskiness of her choices.

These needs could be met by trauma treatment, support from teachers and family for good grades in school, and guidance in deciding about whether to return to sports. Commonalities Among These Young People Of the five youths ages 13–16 arrested for a range of offenses described previously, all had strengths. Three had loving families and one had been raised in the past by a loving grandmother. All five needed, and had not received, trauma treatment. The behavior for which they came to the attention of the juvenile justice system (and one of them to the child welfare system) was linked to abuse, loss, harassment, and exposure to

19

violence. None of them understood the connection between past trauma and their present problems, even the two whose aggression was directly related to prior victimization. For two of the youth, their delinquent behavior was associated with their untreated learning disabilities. The other three did not have disabilities, but had become alienated from school and were not achieving as well as they had in the past. Immaturity affected all of their offenses. All had immature thinking, minimized risk, and were unable to anticipate the worst possible outcomes of their behaviors. None of them had the experience to realize that they needed help and could not solve their problems themselves. One was helped by friends, one was loyal to friends, two were pressured by older youth, and one had poor peer relationships. All expressed moral values and knew right from wrong, but they were not rational and could not use mature moral reasoning when caught up in an offense they did not realize was going to happen. The range of developmental characteristics behind the behavior of these five youth is presented in Table 1.1. These portraits are quite different than the standard files of system-involved youth might suggest. Without minimizing the seriousness of the acts these young people have committed, each portrait attempts to explain how the youth came to be in the situations that led them to these actions, and based on that information, what services would likely be successful in building on their strengths and meeting their needs so they can achieve adult lives of purpose. They argue, in my view, for keeping youth out of adult probation, jails, and prisons—allowing them the opportunity to mature and to heal within a juvenile justice system that can provide developmentally sound support. The vignettes also identify lost opportunities for intervening before delinquent acts were ever committed.

20

Marco (Age 14)

Attached to extended family Strong positive family values Felt criticized by stepfather, betrayed by mother

Nondelinquent friends

Well liked by teachers Behind academically No testing for services

Loss of reservation culture Safe neighborhood

Impulsive reaction to criticism Did not realize anger and sadness could explode Did not realize he needed help Not excelling at anything

Physical abuse Separation from family Constant criticism Stress of moving

Undiagnosed ADD and/or executive function deficit

PEER CONTEXT

SCHOOL CONTEXT

NEIGHBORHOOD CONTEXT

IMMATURITY

TRAUMA

DISABILITIES

Separation from mother, abuse in foster home, abuse by father and stepmother Years of feeling unwanted

Wants friends, nonabusive home No prior arrests or substance use

Peter (Age 14)

Minimized risks of boyfriend Minimized risks of alcohol and marijuana Did not realize she needed help Dependent Divorce Domestic violence at home Loss of sports Depressed

Minimized risks of selling marijuana Did not realize drift away from path of school and sports Did not realize he needed help Did not want to be disloyal Father’s murder Loss of sports Mother’s job loss and move Brother leaving

Can’t anticipate consequences Didn’t want to be perceived as gay Not successful at anything Self-destructive behavior Tormented by teasing Repeated abuse caused reflexive reaction to threat Depressed

Minimized risks of joining gang Felt he had no choice but to do what was ordered Did not realize he needed help Not excelling at anything Deaths in family Parents preoccupied Constant fear from violence Pressure to achieve

Untreated processing, attention and executive function difficulties

Low-crime neighborhood

Was an excellent student Decreased confidence in school Working-class neighborhood with increasing crime

Was an excellent student

Isolated rural area

IEP for behavior control, not for disabilities Feels no one stopped mistreatment

Strong, caring family Did not realize she needed more supervision and help

Strong, caring family Did not realize he needed more supervision and help

Nondelinquent friends except her boyfriend Unable to leave abusive boyfriend

Wants to go to college No prior arrests Athletic talent

Wants to go to college Athletic talent

Friends no longer athletes and likely to drop out of school Daily marijuana use requires $

Kristi (Age 16)

Brandon (Age 15)

Terrified by gang violence

Capable of grade-level work, but alienated Feels teachers are unsupportive

Brother and friends in gang Picked on every day in school for 6 years

Strong, caring family Did not know how to provide supervision or encouragement

Wants to complete high school Wants to complete high school No prior arrests or substance use Remorseful Knows hurting someone is wrong

FAMILY CONTEXT

STRENGTHS

Dustin (Age 13)

Table 1.1. A Developmental Framework for Understanding Five System-Involved Youth

A Developmental View of Youth in the Juvenile Justice System

Taking an ecologically oriented, traumainformed developmental view of who these young people are, what they need, and what they might yet become is a step toward providing them with the effective juvenile services described in subsequent chapters.

REFERENCES Abram, K. M., Teplin, L. A., Charles, D. R., Longworth, S., McClelland, G., & Dulcan, M. (2004). Posttraumatic stress disorder and trauma in youth in juvenile detention. Archives of General Psychiatry, 61, 403–410. American Medical Association (2005). Amici curiae brief, Roper v. Simmons, United States Supreme Court, pp. 4–20. Arseneault, L., Walsh, E., Trzesniewski, K., Newcombe, R., Caspi, A., & Moffitt, T. E. (2006). Bullying victimization uniquely contributes to adjustment problems in young children. Pediatrics, 130(9), 118. Beyer, M. (2006). Fifty delinquents in juvenile and adult court. American Journal of Orthopsychiatry, 76(2), 206–215. Beyer, M., Blair, G., Katz, S., Simkins, S., & Steinberg. A. (2003). A better way to spend $500,000: How the juvenile justice system fails girls. Wisconsin Women’s Law Journal, 18(1), 51–75. Bishop, D. (2000). Juvenile offenders in the adult criminal justice system. Crime and Justice, 17, 81. Brown, L., & Gilligan, C. (1992). Meeting at the crossroads. New York, NY: Ballantine. Brosky, B. A., & Lally, S. J. (2004). Prevalence of trauma, PTSD and dissociation in court-referred adolescents. Journal of Interpersonal Violence, 19(7), 801–814. Chamberlain, P., & Moore, K. (2002). Chaos and trauma in the lives of adolescent females with antisocial behavior and delinquency. Journal of Aggression, Maltreatment and Trauma, 6(1), 79–108. Cicchetti, D., & Toth, S. L. (1998). The development of depression in children and adolescents. American Psychologist, 53, 221–241. Cohen, J., Mannarino, A., & Deblinger, E. (2006). Treating trauma and traumatic grief in children and adolescents. New York, NY: Guilford Press. Cross, W. E., Jr., & Fhagen-Smith, P. (2001). Patterns of African American identity development: A life span

21

perspective. In B. Jackson & C. Wijeyesinghe (Eds.), New perspectives on racial identity development: A theoretical & practical anthology (pp. 243–270). New York: New York University. Dodge, K. A. (2003). Do social information processing patterns mediate aggressive behavior? In B. Lahey, T. Moffitt, & A. Caspi (Eds.), Causes of conduct disorder and juvenile delinquency (pp. 254–274). New York, NY: Guilford Press. Dodge, K. A., Malone, P. S., Lansford, J. E., MillerJohnson, S., Petit, G. S., & Bates, J. E. (2006). Toward a dynamic developmental model of the role of parents and peers in early onset substance use. In J. Dunn & A. Clarke-Stewart (Eds.), Families count: Effects on child and adolescent development (pp. 104–131). New York, NY: Cambridge University Press. Eccles, J. S., & Gootman, J. (2002). Community programs to promote youth development. Washington, DC: National Academy Press. Eisenberg, N., Morris, A. S., McDaniel, B., & Spinrad, T. L. (2009). Moral cognitions and prosocial responding in adolescence. In R. M. Lerner & L. Steinberg, Handbook of adolescent psychology, Vol. 1: Individual bases of adolescent development (3rd ed., pp. 229–265). Hoboken, NJ: Wiley. Eme, R. (2009). Attention deficit hyperactivity disorder and the family court. Family Court Review, 47(4), 650–664. Erikson, E. H. (1959). Identity and the life cycle; selected papers. New York, NY: International Universities Press. Fagan, J. (2000). Contexts of choices by adolescents in criminal events. In T. Grisso & R. Schwartz (Eds.), Youth on Trial (pp. 371–402). Chicago, IL: University of Chicago Press. Fareri, D. S., Martin, L. N., & Delgado, M. R. (2008). Reward-related processing in the human brain: Developmental considerations. Development and Psychopathology, 20, 1191–1211. Ford, J. D., Chapman, J. F., Hawke, J., & Albert, D. (2007). Trauma among youth in the juvenile justice system: Critical issues and new directions. Retrieved from National Center for Mental Health and Juvenile Justice Web site: www.ncmhjj.com Furby, M., & Beythe-Marom, R. (1992). Risk-taking in adolescence: A decision-making perspective. Developmental Review, 12, 1–44. Galliher, R. V., Rostosky, S. S., & Hughes, H. K. (2004). School belonging, self-esteem, and depressive symptoms in adolescents: An examination of sex,

22

FRAMING

sexual attraction status, and urbanicity. Journal of Youth and Adolescence, 33(3), 235–245. Garcia Coll, C., Akerman, A., & Cicchetti, D. (2000). Cultural influences on developmental processes and outcomes. Development and Psychopathology, 12, 333–356. Giaconia, R. M., Reinherz, H. Z., Paradis, A. D., & Stashwick, C. K. (2003). Comorbidity of substance use disorders and posttraumatic stress disorder in adolescents. In P. Ouimette & P. J. Brown (Eds.), Trauma and substance abuse (pp. 227–242). Washington, DC: American Psychological Association. Graham, S., & Lowry, B. (2004). Priming unconscious racial stereotypes about adolescent offenders. Law and Human Behavior, 28, 483–504. Grisso, T., Steinberg, L., Cauffman, E., Scott, E., Graham, S., Lexcen, F., . . . Schwartz, R. (2003). Juveniles’ competence to stand trial. Law and Human Behavior, 27(4), 333–363. Hampel, P., & Petermann, F. (2006). Perceived stress, coping, and adjustment in adolescents. Journal of Adolescent Health, 38, 409–415. Hennessey, M., Ford, J. D., Mahoney, K., Ko, S., & Siegfried, C. (2004). Trauma among girls in the juvenile justice system. Los Angeles, CA: National Child Traumatic Stress Network. Horowitz, J. A., Vessey, J. A., Carlson, K. L., Bradley, J. F., Montoya, C., McCullough, B., & David, J. (2004). Teasing and bullying experiences of middle school students. Journal of the American Psychiatric Nurses Association, 10(4), 165–172. Kazdin, A. (2000). Adolescent development, mental disorders, and decision making of delinquent youth. In T. Grisso & R. Schwartz (Eds.), Youth on trial (pp. 33–65). Chicago, IL: University of Chicago Press. Kerig, P. K., Ward, R. M., Vanderzee, K. L., & Moeddel, M. A. (2009). Posttraumatic stress as a mediator of the relationship between trauma and mental health problems among juvenile delinquents. Journal of Youth and Adolescence, 38(9), 1214–1225. Kindlon, D., & Thompson, M. (1999). Raising Cain: Protecting the emotional life of boys. New York, NY: Ballantine. Kroger, J. (2003). Identity development during adolescence. In G. R. Adams & M. D. Berzonsky (Eds.), Blackwell handbook of adolescence (pp. 205–226). Malden, MA: Blackwell Publishing. Larson, R. W., Moneta, G., Richards, M. H., & Wilson, S. (2002). Continuity, stability, and change in daily

THE

ISSUES

emotional experience across adolescence. Child Development, 73(4), 1151–1165. Lerner, R. M. (2002). Concepts and theories of human development (3rd ed.). Mahwah, NJ: Erlbaum. Lerner, R., & Steinberg, L. (2004). The scientific study of adolescent development past, present, and future. In R. Lerner and L. Steinberg (Eds.), Handbook of adolescent psychology (pp. 1–12). Hoboken, NJ: Wiley. Lieberman, A., & Van Horn, P. (2004). Assessment and treatment of young children exposed to traumatic events. In J. Osofsky (Ed.), Young children and trauma (pp. 194–216). New York, NY: Guilford Press. Luthar, S. S. (2003). Resilience and vulnerability: Adaptation in the context of childhood adversities. Cambridge, MA: Cambridge University Press. Majd, K., Marksamer, J., & Reyes, C., (2009). Hidden injustice: Lesbian, gay, bisexual and transgender youth in juvenile courts. Legal Services for Children, National Juvenile Defender Center, and National Center for Lesbian Rights. San Francisco, CA. McGowan, A., Hahn, R., Liberman, A., Crosby, A., Fullilove, M., Johnson, R., . . . Task Force on Community Preventive Services. (2007). Effects on violence of laws and policies facilitating the transfer of juveniles from the juvenile justice system to the adult justice system (Centers for Disease Control and Prevention). American Journal of Preventive Medicine, 32(4 Suppl), 7–28. Ney, P., Colbert, P., Newman, B., & Young, J. (1986). Aggressive behavior and learning difficulties as symptoms of depression in children, Child Psychiatry and Human Development, 17(1), 3–14. Ofshe, R., & Leo, R. (1997). Decision to confess falsely. Denver University Law Review, 74, 979– 1122. Olweus, D. (1993). Victimization by peers: Antecedents and long-term outcomes. In K. H. Rubin & J. B. Asendorf (Eds.), Social withdrawal, inhibition, and shyness (pp. 315–341). Hillsdale, NJ: Erlbaum. Osofsky, J. D. (2004). Young children and trauma: Intervention and treatment. New York, NY: Guilford Press. Owen-Kostelnik, J., Reppucci, N. D., & Meyer, J. R. (2006). Testimony and interrogation of minors: Assumptions about maturity and morality. American Psychologist, 61(4), 286–304. Price, J. M., & Landsverk, J. (1998). Social informationprocessing patterns as predictors of social adaptation and behavior problems among maltreated children in foster care. Child Abuse and Neglect, 22(9), 845–858.

A Developmental View of Youth in the Juvenile Justice System

Putnick, D. L., Bornstein, M. H., Hendricks, C., Painter, K. M., Suwalsky, J. T., & Collins, W. A. (2008). Parenting stress, perceived parenting behaviors, and adolescent self-concept in European American families. Journal of Family Psychology, 22(5), 752–762. Ryan, C., Huebner, D., Diaz, R. M. & Sanchez, J. (2009) Family rejection as a predictor of negative health outcomes in white and Latino lesbian, gay and bisexual young adults. Pediatrics, 1, 346–352. Scott, E. S., & Grisso, T. (1997). The evolution of adolescence: A developmental perspective on juvenile justice reform. The Journal of Criminal Law and Criminology, 88, 137–189. Scott, E. S., & Steinberg, L. (2008). Adolescent development and the regulation of youth crime. The Future of Children, 18(2), 15–33. Sedlak, A., & McPherson, K. (2010). Conditions of confinement: Findings from the Survey of Youth in Residential Placement (May). Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U. S. Department of Justice. Seiffge-Krenke, I. (1995). Stress, coping, and relationships in adolescence. Hillsdale, NJ: Erlbaum. Smetana, J. G., & Turiel, E. (2003). Moral development during adolescence. In G. R. Adams & M. D. Berzonsky (Eds.), Blackwell handbook of adolescence (pp. 247–268). Malden, MA: Blackwell. Smith, D., Leve, L., & Chamberlain, P. (2006). Adolescent girls’ offending and health-risking sexual behavior: The predictive role of trauma. Child Maltreatment, 11(4), 346–353. Spear, L. P. (2000) The adolescent brain and age-related behavioral manifestations. Neuroscience and Biobehavioral Reviews, 417–463. Spencer, M. B., Harpalani, V., Cassidy, E., Jacobs, C. Y., Donde, S., Goss, T. N., . . . Wilson, S. (2006). Understanding vulnerability and resilience from a normative developmental perspective: Implications for racially and ethnically diverse youth. In D. Chicchetti (Ed.), Handbook of development and psychopathology (pp. 627–673). New York, NY: Wiley. Steinberg, L. (2008). A social neuroscience perspective on adolescent risk-taking. Developmental Review, 28, 78–106.

23

Steinberg, L., & Haskins, R. (2008). Keeping adolescents out of prison. Princeton University-Brookings Institution Policy Brief. Retrieved from www.future ofchildren.org Steinberg, L., Lamborn, S. D., Darling, N., Mounts, N. S., & Dornbusch, S. M. (1994). Over-time changes in adjustment and competence among adolescents from authoritative, authoritarian, indulgent and neglectful families. Child Development, 65, 754–770. Warden, R., & Drizin, S. (Eds.). (2009). True stories of false confessions. Chicago, IL: Northwestern University. Widom, C. S. (1994). Child victimization and adolescent problem behavior. In R. D. Ketterlinus & M. E. Lamb (Eds.), Adolescent problem behavior: Issues and research. Hillsdale, NJ: Erlbaum. Wigfield, A., Byrnes, J. B., & Eccles, J. S. (2006). Adolescent development. In P. A. Alexander & P. Winne (Eds.), Handbook of educational psychology (2nd ed., pp. 87–113). Mahwah, NJ: Erlbaum. Wilber, S., Ryan, C., & Marksamer, J. (2006). Serving LGBT youth in out-of-home care. Washington, DC: Child Welfare League of America. Wills, T. A., Sandy, J. M., & Yaeger, A. M. (2001). Coping dimensions, life stress, and adolescent substance use: A latent growth analysis. Journal of Abnormal Psychology, 110, 309–323. Wolfe, D., Rawana, J., & Chiodo, D. (2006). Abuse and trauma. In D. Wolfe & E. Mash (Eds.), Behavioral and emotional disorders in adolescents. New York, NY: Guilford Press. Wood, J., Foy, D., Goguen, C., Pynoos, R., & James, C. B. (2002a). Violence exposure and PTSD among delinquent girls. Journal of Aggression, Maltreatment and Trauma, 6(1), 109–126. Wood, J., Foy, D., Layne, C., Pynoos, R., & James, C. B. (2002b). An examination of the relationships between violence exposure, posttraumatic stress symptomatology, and delinquent activity: An “ecopathological” model of delinquent behavior among incarcerated adolescents. In R. Greenwald (Ed.), Trauma and juvenile delinquency (pp. 109–126). New York, NY: Hayworth. Zahn, M. (2009). The delinquent girl. Philadelphia, PA: Temple.

Juvenile Justice: Advancing Research, Policy, and Practice Edited by Francine T. Sherman and Francine H. Jacobs Copyright © 2011 John Wiley & Sons, Inc.

CHAPTER

2

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement KRISTI HOLSINGER

C

onventional wisdom about juveniles and delinquency control measures in this country has evolved substantially over time, yielding fragmented, contradictory, and at times even chaotic, approaches to managing juvenile delinquency—hardly a “system” in any conventional sense and certainly “young” in its development. In turn, shifting perspectives on who these youth are and how they should be treated have bedeviled attempts to standardize how they and their offenses are described and documented. Based on nationally available data, this chapter presents as full and accurate a portrait as possible of these young people, at each stage of their involvement with the juvenile justice system. A brief review of the history of the development and current operations of the system will proceed to provide necessary context for the data that follow.

1972). An important counterdevelopment occurred in 1841 with the advent of probation for children; similar “child-helping” initiatives soon followed with the creation of reform schools. However, it was during the Progressive Era when reforms that credited the ageminority status of children, including the establishment of the first juvenile court in 1899, became widespread. The reformers of this period saw the main goal of the juvenile justice court as treatment and rehabilitation, not punishment. Delinquency was a condition that could be identified, treated, and cured, they argued, through an individual analysis of the youth’s special needs and circumstances. In response, the court eliminated the punitive, adversarial, and formalized procedures of the adult criminal process and adopted more informal proceedings characterized by greatly increasing judicial discretion; as an unintended consequence, many due process protections afforded adults were eliminated. Eventually, common belief held that the juveniles were getting “the worst of both worlds” (Kent v. United States, 1966, p. 556), receiving neither the necessary help or treatment promised by the juvenile court, nor the procedural protection adults in the criminal justice system enjoyed. Landmark cases heard by the Supreme Court (e.g., In re Gault, 1967;

THE HISTORICAL LEGACY OF THE JUVENILE JUSTICE SYSTEM Some mark the beginning of the juvenile justice system in the early 1800s, when states began to supersede parental authority and rights by institutionalizing “deviant” children, often for cheap labor, however, still treating them similarly to adult criminals (Mennel, 24

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement

In re Winship, 1970) supported this contention, and the rights of juveniles were greatly expanded, institutionalizing some of the formality of the adult system in the juvenile court. Juveniles began to be treated more like adults in other ways as well; for example, the 1980s marked efforts by virtually every state to allow easier transfer of youth to adult court (Feld, 1998; Torbet et al., 1996; see Sherman & Blitzman, Chapter 4, this volume). Research in the 1960s and 1970s also identified serious flaws in the system. Correctional “treatment,” especially in institutions, was punitive, harsh, and sometimes even sadistic (Holland & Mlyniec, 1995; President’s Commission on Law Enforcement and Administration of Justice, 2008; also see Beck, Harrison, & Guerino, 2010, for a current review and analysis of sexual victimization in juvenile facilities), and minor offenders were incarcerated alongside seriously delinquent youth. In the 1970s, deinstitutionalization (providing programs in community-based settings rather than in institutions) and diversion (keeping youth out of the system to begin with) were promoted. The decriminalization and deinstitutionalization of status offenses were also encouraged, largely due to provisions in the Juvenile Justice and Delinquency Prevention Act of 1974. By the 1980s, a score of social and demographic factors precipitated a shift away from the long-standing posture of rehabilitation to one reflecting a “get tough” mentality (Butts & Mears, 2001). Crime control policies instituted for juveniles included lowering the age limit for juvenile court jurisdiction, the increased use of preventative detention, the increased transfer of juveniles to the adult system, a move toward determinate sentencing for violent offenders, and even the use of the death penalty for certain crimes. Data linking these get-tough measures with reductions in youth

25

crime have not been forthcoming; in fact, an in-depth analysis in Florida found such punitive measures to have a negligible impact on juvenile crime rates (Frazier, Bishop, & LanzaKaduce, 1999). Recent developmental research on adolescent brain functioning also suggests that youth do not have the same skills as adults in weighing costs and benefits and acting rationally (Scott & Steinberg, 2000). These developments have called into question the wisdom of the policy shifts of the 1980s and 1990s. Interestingly, both of these contradictory approaches remain part of the current juvenile justice system. States and counties vary greatly in their ideological viewpoints on, and their legislation concerning, juvenile crime; juvenile court practices are also determined by the demographics and geography of states and by the resources available for youth in a given community (see Schiraldi, Schindler & Goliday, Chapter 20, this volume). All this leads to wide variation across the country in the youth who are involved in the juvenile justice system, which in turn produces broad variation in selection and maintenance of both person- and crime-specific data.

HOW JUVENILE CASES ARE PROCESSED There are almost 3,000 juvenile courts in operation in the United States (Krisberg, 2005). The number of delinquency cases handled by them remained largely stable between 2000 and 2007, with approximately 1.7 million cases handled nationwide in 2007 (Knoll & Sickmund, 2010). As can be seen from Figure 2.1, the juvenile court caseload climbed steadily from 1960, when 400,000 cases were processed, to the peak year in 1997 with over 1.8 million cases (Puzzanchera &

26

FRAMING

THE

ISSUES

Figure 2.1 Number of Delinquency Cases, 1960–2005

Source: Adapted from Puzzanchera and Sickmund, 2008.

Sickmund, 2009). Between 1997 and 2007, there was an 11% decline in delinquency cases (Puzzanchera, Adams, & Sickmund, 2011). This decrease has been attributed to reductions in juvenile violent crime and expanded laws allowing for juvenile cases to be directly transferred to adult courts (Adams & Addie, 2010). The juvenile justice process typically begins with a referral, which can be handled informally or formally, or diverted. Most juveniles (83% in 2007; Puzzanchera et al., 2011) are referred into the system by law enforcement, although many cases drop out of the system through informal processing or diversion. Other referrals come from schools, parents, victims, probation officers, and social service agencies, largely dependent on the offense. For example, in 2002 non-law enforcement referrals accounted for a small percentage of property (9%), drug (10%) and person offenses (13%), and a larger percentage of truancy (86%), ungovernability (70%), runaway (45%), and public order offenses (39%) (Snyder & Sickmund, 2004). Beginning in the 1990s, there has been a trend of increased school referrals to juvenile court as the result of zero-tolerance state laws mandating referral of children to law

enforcement for certain school violations (see Bell & Mariscal, Chapter 6, this volume; Boundy & Karger, Chapter 14, this volume; Vaught, Chapter 15, this volume). An analysis of school referrals in five states found that four of the states experienced a greater proportion of referrals from schools to juvenile court in 2004 compared to 1995 (Krezmien, Leone, Zablocki, & Wells, 2009). Initially concerned with drugs, gangs, and weapons, zero-tolerance laws have expanded to include behaviors considered disruptive (Skiba, 2001). This practice has led to a phenomenon referred to as the “school-to-prison pipeline” where certain groups of students, particularly African American students, are put on a pathway by schools into the justice system (Wald & Losen, 1995; see Boundy & Karger, Chapter 14, this volume). The decision to detain a juvenile must involve parental notification and a review by an intake officer or a prosecutor to ensure sufficient evidence to proceed. At this point in processing, 44% of the cases are dismissed or handled informally, while slightly more than half (56%) result in formal intervention by the court (Sickmund, 1988). Holding a youth for an extended period of time (over 24 hours in

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement

most states) requires a judicial decision and typically is determined by whether the youth is believed to be a harm to self or others; the youth lacks a parent or guardian, which can include homelessness or runaway status; or it is believed the youth is unlikely to appear for future court proceedings (Chesney-Lind & Shelden, 2004). In 2005, detention hearings resulted in 21% of youth being detained (Snyder & Sickmund, 2004). A delinquency case is handled in either juvenile or criminal (adult) court. Between 1992 and 1997, 44 states and the District of Columbia passed laws increasing the likelihood a juvenile would be waived to adult criminal court, either through changes in the law or by giving judges and/or prosecutors increased discretion (Allard & Young, 2002). The criteria and process for waiver to adult court are determined by state statute, but largely reflect an individual or policy decision about whether a youth or groups of youth are likely to be rehabilitated by the services provided in the juvenile court (see Sherman & Blitzman, Chapter 4, this volume). Less than 1% of all delinquency cases result in judicial waiver, and about half are for personrelated offenses (48%), with the other half being transferred to the adult system for property (27%), drug-related (13%), or public order offenses (11%) (Adams & Addie, 2010). This offense distribution has changed considerably when compared to transfers 20 years ago. In 1985, most cases involved property offenses (53%), followed by person (33%), public order (9%), and drug offenses (5%) (Adams & Addie, 2010). In 2007, approximately 8,500 cases were waived to criminal court. Most waived cases involved males (90%) over the age of 15 (88%) (Adams & Addie, 2010). To date, research on the use of waivers for juveniles is not supportive of the practice, as there is no evidence that it achieves reductions in recidivism or youth

27

crime, and in fact the practice may lead to increased recidivism (Bishop, 2000; Bishop & Frazier, 2000). Because of waivers, youth are eligible to receive life sentences. In 2008, the number of juveniles serving life terms was 6,807, and, depending on the source, between 26% and 37% of these youth have no chance of parole (Human Rights Watch, 2008; Nellis & King, 2009). While virtually every state doles out life terms (exceptions are Indiana, Maine, Vermont, and West Virginia), more than 50% of these juveniles are from five states: California, Texas, Pennsylvania, Florida, and Nevada. Juveniles sentenced to life without parole are most likely to come from the states of Pennsylvania, California, Michigan, and Louisiana. In 2010 the U.S. Supreme Court held that a sentence of life without parole for juveniles in nonhomicide cases was unconstitutional (Graham v. Florida, 2010; see Sherman & Blitzman, Chapter 4, this volume). If a case proceeds in juvenile court, an adjudicatory hearing is scheduled, and the case is typically decided by a judge (see Figure 2.2 for the typical case flow in the juvenile justice system). In juvenile court, a separate hearing is held to determine the disposition of the case. This separate hearing allows time for a presentence investigative report to be filed based on a probation officer’s assessment of the unique needs and circumstances of the juvenile and exists as evidence of the court’s enduring goal of individualized treatment and rehabilitation. A judge then determines the disposition of the case, although input from the prosecution, youth, and probation officers can be presented (Snyder & Sickmund, 2006). Two categories of offenses that come to the attention of juvenile courts are criminal offenses and status offenses, the latter of which are behaviors deemed illegal based solely on the minor status of the offender (i.e., running away,

28

FRAMING

THE

ISSUES

Figure 2.2 Juvenile Justice System Case Flow Diagram

Source: Adapted from Snyder and Sickmund, 2006.

truancy, consuming alcohol). Processing for these two types of offenses is similar; however, the Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974 (P.L. 93-415, 88 Stat. 1109) and subsequent reauthorizations (1977, 1980, 1984, 1988, 1992, 2002) prohibit the use of secure detention for status offenses. In the JJDPA, states were required to use services outside of the juvenile justice system, such as group homes or shelter facilities run by family or social services in lieu of juvenile court residential placements. However, many status offenders still find their way into detention and placements through the valid court order (VCO) exception, passed in 1980 and included in subsequent reauthorizations. Under the VCO exception, status offenders can be detained if they violate a valid court order in the form, for example, of a probation condition. In

2007, about 11% of all adjudicated status offenders were in court ordered out of home placement (Puzzanchera et al., 2010). Due to the less serious nature of most juvenile crime, the most common disposition has always been, and remains, probation. Probation or regularly scheduled meetings between a probation officer and juvenile offender results in 56% of cases adjudicated delinquent and typically include other mandates such as drug testing, counseling, or restitution (Sickmund, 2010). After reaching a peak in 1997, the number of cases adjudicated delinquent and sanctioned to probation declined 17% by 2007 (Puzzanchera et al., 2010). Probation, either for a fixed amount or an open-ended amount of time, is terminated once the specified conditions have been met (Snyder & Sickmund, 2006). Regardless

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement

of the effectiveness of probation, its use successfully allows a youth to avoid the many negative consequences now associated with incarceration (Bernburg & Krohn, 2003). Twenty-five percent of offenders adjudicated delinquent are placed in a residential facility for a specified or indeterminate time, which is the most severe outcome available for juveniles within the juvenile justice system (Sickmund, 2010). Approximately 95,000 youth are held in juvenile justice facilities and publicly operated facilities house 69% of juvenile offenders (Livsey, Sickmund, & Sladky, 2009). In 2007, state-funded, postadjudicatory, residential facilities cost an average of $241 per day (American Correctional Association, 2008). The use of out-of-home residential placements peaked in 1997 and decreased 16% through 2007, with the largest decreases taking place for property offenses (34% reduction between 1997 and 2007) and drug offenses (16% reduction) (Puzzanchera et al., 2010). Rehabilitative ideals typically coincide with an indeterminate sentence, in which the juvenile is held until juvenile justice professionals feel he or she is adequately reformed, whereas a determinate sentence, which is based on the offense and specific sentencing guidelines determined by states, is more consistent with “get-tough” practices (Forst, Fisher, & Coates, 1985). Upon release from residential facilities, jails, and adult prisons, some form of juvenile aftercare (referred to as parole in the adult system) is typically available, but jurisdictions vary greatly on the extent to which aftercare is treatment oriented. From an accountability perspective, there are usually conditions during this time period, which, if violated, can result in recommitment. In spite of very high recidivism rates for system-involved youth, aftercare is underdeveloped in most juvenile justice systems (Mears & Travis, 2004).

29

Relying on institutions to “fix” juveniles in the system is problematic, as abusive and harsh conditions remain a reality (Beck et al., 2010). A survey conducted by the Associated Press found 13,000 claims of abuse from 2004 through 2007, but only a fraction of these is confirmed, likely related to the positions of authority held by adults in these environments (Mohr, 2008). A 2010 report by the Bureau of Justice Statistics based on the National Survey of Youth in Custody (26,550 youth) found that 12% (n ¼ 3,220) report experiencing one or more incidents of sexual victimization by another youth or facility staff in the past 12 months (Beck et al., 2010). Staff sexual misconduct accounts for the majority of the incidents (85%), and boys report more abuse by staff, while girls are at greatest risk for sexual victimization by another youth (Beck et al., 2010). These statistics are of particular concern, given the higher rates of childhood victimization that exist in the delinquent population compared to the general population and the potential for additional traumatic experiences in the girls’ lives.

OFFENSE TRENDS Much of what is known about juvenile arrests and offense trends comes from the Uniform Crime Reports (UCR) compiled by the U.S. Department of Justice through the Federal Bureau of Investigation; these data are based on reports submitted by law enforcement agencies. In 2008, 95% of the total population of law enforcement agencies was represented by the UCR, making it the most comprehensive data set on juvenile crime available (U.S. Department of Justice, 2009). Nonetheless, there are questions about the extent to which the data represent an accurate picture of juvenile crime. The most frequent criticism has

30

FRAMING

THE

ISSUES

Figure 2.3 Percentage of Juvenile Arrests by Offense Type, 2009

non-index property index violent index

Source: U.S. Department of Justice, 2010.

been that the data are affected by discretionary police policies and practices, such as the level of police presence in a particular area. Further, many juvenile crimes are committed that never come to the attention of the police, a statement particularly true for minor offenses. Additionally, arrest statistics do not reflect the guilt of an individual. As a result, when possible, it is important to examine multiple data sources that use several different research methodologies, in addition to arrest statistics, in order to gain the most complete picture possible of youth crime.1 In 2009, the number of juveniles arrested was 1,919,257, comprising 17.8% of the total number of arrests for all ages (U.S. Department 1

Other data sources available include large self-report studies, which collect data from the youth themselves (i.e., the National Youth Survey, www.colorado.edu/ IBS/NYSFS/, Monitoring the Future, www.monitor ingthefuture.org), the National Crime Victimization Survey, which gathers data from victims of crimes (www.ojp.usdoj.gov.bjs), and Juvenile Court Statistics, which are a compilation of records of cases handles by juvenile courts (www.ojjdp.ncjrs.org).

of Justice, 2010). This number captures the number of arrests, not the number of juvenile offenders, and therefore includes multiple arrests of the same person within the year. Additionally, only the most serious offense is recorded in cases where multiple crimes are committed. As shown in Figure 2.3 above, of all the juvenile arrests, the vast majority (73.4%) were for less serious felonies and misdemeanors (also called “nonindex” or Part II offenses). Index crimes (also referred to as Part I offenses) are the eight serious, felony-level crimes of murder, rape, robbery, aggravated assault, larcenytheft (over $50), motor vehicle theft, and arson. Approximately one quarter (26.6%) of juvenile arrests were for index crimes (22.2% for property index offenses and 4.4% for violent index offenses). In 1980, approximately 7,400 juveniles were arrested, a number that continued to climb to its peak of approximately 9,400 in 1996 (see Figure 2.4). Ten-year trends, from 2000 to 2009, indicate that arrest rates of juveniles are down 20.2%, with greater

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement

31

Figure 2.4 Arrests per 100,000 Juveniles, Ages 10–17, 1980–2008

Source: Adapted from Office of Juvenile Justice and Delinquency Prevention, 2009.

reductions seen in index property crimes (down 20.3%) than in index violent crimes (down 15.0%) (U.S. Department of Justice, 2010). From 2008 to 2009, juvenile arrests fell an additional 2.4%, with a decrease in violent index crimes (2.3%) and an increase in index property crimes (1.6%) (U.S. Department of Justice, 2010). Although the UCR has been critiqued for reflecting enforcement practices, these reductions in arrests are substantiated by the National Crime Victimization Survey (NCVS), which finds serious violent and property victimizations at their lowest levels since 1973 (Bureau of Justice Statistics, 2008). Between 2005 and 2007, the NCVS showed reductions in violent crime (1.9%), personal theft (11.1%), and property crimes (5%).2 From large self-report studies that rely on youth’s disclosure about law violations, several other important factors about juvenile crime are revealed (Elliott, Huizinga, & Ageton, 1985; Nye, Short, & Olson, 1958; Williams & Gold, 1972). First, apropos to this method of data gathering, unlike official data, self-report 2

NCVS data are not specific to juvenile offenders, but rather reports all victimizations regardless of the age of the offender.

surveys typically tap less serious, even trivial, delinquent behaviors that are unlikely to come to the attention of the police. This measurement approach to juvenile crime showed that minor acts of delinquency are common among youth in the general population in all socioeconomic groups, thus questioning the social class–delinquency relationship (Akers & Sellers, 2008). However, shortcomings of the available data abound, particularly regarding their accuracy capturing more frequent and serious offenses (Elliott & Ageton, 1980). This critique has led to the development of studies that identified a relatively small group of chronic offenders who commit a disproportionate amount of crime and delinquency (Blumstein, Cohen, & Farrington, 1988). An overwhelming strength of self-report studies is the ability to test theoretical propositions by collecting a variety of data. For example, the National Youth Survey, one of the most comprehensive attempts to measure delinquency through self-report survey methodology, found that having delinquent peers was the best independent predictor of self-reported offending for early adolescence, but not an important predictor in childhood (Elliott & Menard, 1996). These data also

32

FRAMING

THE

ISSUES

Table 2.1. Percentages of Selected Juvenile Court Referral Offense Types, 1985–2005 Year

Person

Property

Drugs

Public Order

1985 1990 1995 2000 2005

15.9 19.1 22.0 23.0 25.3

60.8 58.4 50.1 39.8 35.3

6.7 5.3 9 11.5 11.5

16.9 17.3 18.9 25.7 27.9

Source: Sickmund, Sladky, and Kang, 2008.

support the contention that juvenile crime has been relatively stable over time (Osgood, O’Malley, Bachman, & Johnston, 1989). Contrary to negative media representation, crime by juveniles is at its lowest level in decades (Krisberg, 2005). Reductions in the youth crime rate have occurred despite slow, steady growth in the juvenile population over the past 25 years. Although the juvenile population is not the fastest growing segment of the population, it increased by 10 million from 1984 (62.5 million) to 2008 (72.3 million), and is projected to continue a slow increase through 2025 (Day, 1996). Another valuable data source on systeminvolved youth and the functioning of the juvenile court is Juvenile Court Statistics, now including 80% of U.S. juvenile court activities (Sickmund, Sladky, & Kang, 2008). These data provide information on the types and dispositions of cases handled by the juvenile courts. In 2005, the referring offense for juveniles was most often a property offense (35.3%), followed by a public order offense (27.9%). Violent or person offenses represented about a quarter of the cases (25.3%), with drugs making up the smallest percentage of cases (11.5%). Marked declines exist when comparing property offenses committed by youth over the past 20 years with less dramatic increases seen in the remaining three offense categories of person, drug, and public order offenses (see Table 2.1).

Over the past 20 years, referrals have become more likely to be handled formally (55.9% in 2005, compared to 45.6% in 1985) and more likely to result in adjudication (36.7% in 2005, compared to 29% in 1985). The use of detention has been slightly variable without consistent trends, but the 20-year average is 20%, meaning 2 out of every 10 youth are held in detention (Sickmund et al., 2008).

RISKS TO, AND STRENGTHS OF, SYSTEM-INVOLVED YOUTH Historically, system-involved youth have been characterized by their deficits, even among those who have advocated for more humane and rehabilitative approaches to addressing delinquency. These deficits appear either as actual conditions or limitations that are documented at some point during involvement with the system, or as “risk factors”— characteristics of the individual child, his or her family, or community that, as statistical predictors, increase the likelihood of a youth becoming delinquent. (See Braverman & Morris, Chapter 3, this volume, for a comprehensive treatment of risks implicated in delinquency.) These risks do not predict offending with certainty, but indeed, a host of factors—for example, impulsive or aggressive childhood behavior, or child maltreatment— have been found to be statistically correlated

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement

with delinquency. The effect of risk factors can be cumulative, dependent on the timing in which they occur in a youth’s development; however, they also may be mitigated by existing strengths, or “protective factors,” in a youth’s ecology. The strengths perspective, also referred to as a resiliency framework (Masten & Powell, 2003; Saleebey, 2005) and positive youth development (Lerner, Taylor, & von Eye, 2002; see Lerner et al., Chapter 5, this volume), recognize the strengths in individuals, families, and communities and seeks to collaborate with, and utilize, existing resources outside of the justice system. (See Beyer, Chapter 1, this volume, for youth profiles that integrate both strengths and risks.) Strengths are often conceptualized as “protective factors” that can counteract the negative effects of risk factors in youth’s lives as well as promote prosocial behavior in youth. They are defined as “those factors that mediate or moderate the effect of exposure to risk factors, resulting in reduced incidence of problem behavior” (Pollard, Hawkins, & Arthur 1999, p. 146). At times, protective factors are the exact opposite of a given risk factor, for example, excellent academic performance versus academic failure. They can also be “characteristics or conditions that interact with risk factors to reduce their influence” (Office of the Surgeon General, 2001) but are not necessarily “cures” to delinquency. Although a full portrait of youth presenting both risks and strengths would help the juvenile justice system develop more appropriate strategies for combating delinquency and promoting better functioning, the system remains largely deficit based. The strengths of these youth are insufficiently identified, measured, and utilized (Masten & Powell, 2003; see Beyer, Chapter 1, this volume; Lerner et al., Chapter 5, this volume; Schiraldi et al., Chapter 20, this volume).

33

THE DEMOGRAPHICS OF SYSTEM-INVOLVED YOUTH Understanding exactly who are the youth involved in the system is a complicated matter. Any national-level descriptive demographic profile of juvenile offenders results from official data and therefore represents only youth who are involved in the system, not all youth who commit offenses and do not come to the attention of the police, or those who are not formally processed. Therefore, demographic data related to age, gender, race/ethnicity, and geography presented in this section focus on youth who are processed in the juvenile justice system. Additionally, disabilities and mental health issues are reported, given their prevalence among this population. Age Each state determines the age at which a child will be under the juvenile court’s jurisdiction. Sixteen states specify a minimum age: 6 years old (North Carolina), 7 years old (Maryland, Massachusetts, and New York), 8 years old (Arizona), and 10 years old (Arkansas, Colorado, Kansas, Louisiana, Minnesota, Mississippi, Pennsylvania, South Dakota, Texas, Vermont, and Wisconsin), while the remaining states do not specify an age but rely on the common-law age of 7 for inclusion in juvenile court (Snyder & Sickmund, 2004). The oldest age for juvenile court jurisdiction in delinquency matters ranges from 16 (New York and North Carolina) to 18, with 17 being the age limit in 11 states. This has been an issue on which states have recently amended their laws, with the trend toward raising the age of juvenile court jurisdiction to 18, expanding youth’s access to the the juvenile justice system rather than the adult criminal justice system (Arya, 2011).

34

FRAMING

THE

ISSUES

Figure 2.5 Percentage of Juvenile Arrests Under Age 15, by Offense Type, 2008

Source: U.S. Department of Justice, 2009.

The UCR disaggregates arrest statistics by age. Arrest data also indicate the mean age at which youth are arrested for violent offenses (18 years old) and property offenses (16 years old) (U.S. Department of Justice, 2008). Data on arrests of juvenile offenders under the age of 15 show that their involvement in serious violent crime and serious property crimes is sizable, 27% and 29%, respectively, and similar for nonindex offenses (27%; see Figure 2.5, above). The highest offense categories for this age group within nonindex offenses are sex offenses (47%) and vandalism (40%). Their highest offense category overall is arson, where they make up 56% of juvenile arrests. In terms of violent index crimes, youth in the lower age category are responsible for 34% of forcible rape arrests and 31% of aggravated assaults. Of the cases processed in juvenile court in 2005, juveniles under the age of 16 accounted for 57% of all delinquency cases (4% under the age of 12, 5% 12-year-olds, 10% 13-yearolds, 17% 14-year-olds, 23% 15-year-olds) (Sickmund, 2009; Sickmund et al., 2008).

This younger age group accounted for 64% of all juvenile person offense cases, 59% of property offense cases, 54% of public order offense cases, and 42% of drug offense cases (Sickmund, 2009). The rank ordering of these cases stays the same when looking at the proportions of juvenile cases processed of youth younger than age 14 (24% person offense cases, 20% property offense cases, 15% public order offense cases, and 8% drug offense cases) (Sickmund, 2009). Sixteen-year-olds make up the largest proportion of juvenile court cases (24%), with involvement lower for 17-year-olds (18%) (Sickmund et al., 2008). There has been very little change over time in terms of the age representation in the juvenile court. The most notable changes are a 20-year decrease in the number of youth under the age of 12 (6.4% in 1985 versus 3.8% in 2005) and slight increases in the numbers of 16- and 17-year-olds (Sickmund et al., 2008). In 2005, 15% of the cases transferred to adult court were of youth age 15 or younger, with the remaining 85% being 16 or older; however, that profile has

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement

shifted to include younger transfers over time. In 1985, only 7% of referrals were 15 years old or younger (Adams & Addie, 2009). Gender Females’ involvement in crime is lower compared to boys for the most serious crimes. Girls make up 18.6% of index violent offense arrests, 31.3% of index property offenses, and 18.6% of the nonindex offenses. Notably, females make up 69.6% of those arrested for prostitution and 55.2% of those arrested for running away. Based on the UCR, juvenile female involvement has been slowly on the rise over time. In 1980, girls made up 21% of arrests, with recent data reporting that girls make up 30% of all arrests in 2008 (U.S. Department of Justice, 2009). Between 2000 and 2009, arrest rates decreased 22.9% for boys and 13.1% for girls. The reductions seen during this period are most significant when looking at index property crimes—down 29.2% for boys, but up almost 1% for girls. Index violent crimes since 2000 are down 14.5% for boys and down 16.9% for girls (U.S. Department of Justice, 2010). The most significant changes in the female percentage of arrests can be attributed to increases in simple assaults (up 13% from 1980 to 2008), aggravated assaults (up 8%), and larceny-theft (up 18%) (U.S. Department of Justice, 1981, 2009). It is primarily for these offenses that gender differences are narrowing. However, detailed data analyses do not conclude that girls are becoming overall more violent; rather explanations focus on how changes, from law enforcement practices to zero-tolerance policies in schools, are driving the increase in girls’ arrests (Zahn et al., 2008). Juvenile court statistics show that in 2007, females made up about 27% of youth processed in juvenile court, a number that has been also

35

on the rise since 1985, when girls made up 19% of all court-involved juveniles (Sickmund et al., 2008). For most offenses, female delinquency cases have grown more or decreased less than male delinquency cases (Snyder & Sickmund, 2006). However, overall, males appear to be receiving harsher treatment than females, which could be related to contextual differences in offending, indicating more serious typical offenses for males within broad offense categories (Zahn et al., 2008). For example, in 2005, males were more likely than females to be detained (22.5% versus 16.6%), more likely to be handled formally (58.9% versus 48.0%), and more likely to be adjudicated delinquent (39.1% versus 30.5%) (Sickmund et al., 2008). Limitations in the data collected, such as the absence of information on the seriousness of the behavior or a youth’s court history, both of which can influence case outcome, require caution in making gender comparisons (Snyder & Sickmund, 2006; see Sherman & Greenstone, Chapter 7, this volume). With the increased concern over how status offenses are managed, a new problem has developed, particularly with regard to the processing of girls for whom status offenses have always represented a larger proportion of committing offenses compared to boys (Chesney-Lind, 1997). When status offenses are relabeled as criminal offenses or youth find their way into the system for violating a valid court order related to a status offense, the deinstitutionalization of status offenses is thwarted and what is known as bootstrapping occurs. In bootstrapping, a status offense becomes a delinquency through mechanisms for enforcement of technical violations of court orders or probation. Evidence exists that girls are more likely than boys to be detained for minor offenses such as technical violation and status offenses (41% versus 25%) (Sherman, 2005).

36

FRAMING

THE

Race/Ethnicity Table 2.2 below presents arrest data by race. Native Americans (including Alaskan Natives) and Asians (including Pacific Islanders) comprise small percentages of arrest totals consistent with their representation in the population, and Whites are typically the majority group for every offense. Several notable exceptions exist where African American youth are the majority group represented;

ISSUES

they are the serious violent offenses of murder (58%), robbery (67.3%), and the nonindex offenses of prostitution/vice (58.4%) and gambling (92.7%). Given that African American youth comprise 15% of the population under 18 years of age, they are overrepresented in every crime category (with the exception of alcohol-related offenses) compared to their representation in the population (Federal Interagency Forum on Child and Family Statistics, 2009). White youth, 76% of the

Table 2.2. Percentages of Arrests for Persons Under 18 Years of Age, by Crime Type and Race, 2009 Crime Type Nonindex offenses Other assaults Forgery and counterfeiting Fraud Embezzlement Stolen property; buying, receiving, possessing Vandalism Weapons (carrying, possessing, etc.) Prostitution and commercialized vice Sex offenses Drug abuse violations Gambling Offenses against the family and children Driving under the influence Liquor laws Drunkenness Disorderly conduct Vagrancy All other offenses (except traffic) Suspicion Curfew and loitering law violations Runaways Index Violent Offenses Murder and nonnegligent manslaughter Forcible rape Robbery Aggravated assault Index Property Offenses Burglary Larceny-theft Motor vehicle theft Arson Total Arrests Representation in the Population (2009) Source: U.S. Department of Justice, 2010.

White

Black

Native American

Asian

67.6 58.6 66.4 61.9 63.8 54.6 78.4 60.7 39.7 71.2 72.4 6.8 73.9 92.0 89.4 88.5 56.8 71.5 69.2 42.3 60.8 65.7 46.4 40.4 63.4 31.1 55.4 63.9 60.9 65.0 54.0 76.7 65.9 77.2

29.6 39.2 32.2 36.0 33.3 43.6 19.2 37.3 58.4 26.6 25.6 92.7 24.3 5.1 6.2 8.7 41.4 27.3 28.0 57.1 37.1 26.7 51.6 58.0 34.5 67.3 42.4 33.2 37.3 31.8 43.2 20.6 31.3 16.2

1.3 1.1 0.5 1.1 0.2 0.8 1.2 0.8 0.4 0.8 0.9 0.0 1.3 1.8 3.1 1.9 1.0 0.4 1.1 0.0 1.0 2.2 0.8 0.9 0.8 0.4 1.0 1.2 0.9 1.2 1.5 1.3 1.2 1.5

1.5 1.1 0.9 1.0 2.7 1.0 1.2 1.2 1.5 1.4 1.1 0.5 0.4 1.2 1.3 0.8 0.8 0.7 1.8 0.6 1.2 5.4 1.2 0.7 1.3 1.2 1.2 1.7 1.0 2.0 1.4 1.4 1.6 5.2

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement

total juvenile population in the United States, represent the vast majority of arrests for the offenses of driving under the influence (92.5%), liquor law violations (90.2%), and drunkenness (88.7%) (Federal Interagency Forum on Child and Family Statistics, 2009). Fifteen percent of the juvenile population in the United States is Hispanic; however, this number is distributed across racial categories (22.5% of Native Americans are Hispanic, while 17.4% of Whites, 4.7% of African Americans, and 3.4% of Asians are Hispanic) (National Center for Health Statistics, 2008). The percentage of Hispanic youth under 18 years old is projected to make the most significant gains in the U.S. population, with one in four youth belonging to this ethnic group by the year 2021, compared to their current representation of 22% (Federal Interagency Forum on Child and Family Statistics, 2009). Data on ethnicity are not collected in the UCR or in juvenile court statistics, so it is difficult to provide a national profile of Hispanic youth involved in the system. Explaining the disproportionate treatment experienced by minority groups is difficult, but research suggests a complex interplay

between existing biases in the policies and practices of law enforcement and justice systems and social conditions that place youth at increased risk for delinquency (Pope, Lovell, & Hsia, 2002; see Bell & Mariscal, Chapter 6, this volume; Vaught, Chapter 15, this volume). A 1-day snapshot of youth held in detention illustrates disproportionate minority contact, showing that in 2006, African American youth were 6 times as likely to be in detention compared to White youth. Latino youth were more than twice as likely, and Native American youth were almost 4 times as likely to be held in detention compared with White youth (W. Haywood Burns Institute, n.d.) (see Figure 2.6). African American youth made up 33% of delinquency cases handled in 2007 (at 16% of the U.S. population), although their representation increases for person-related offenses (41%) and public-order offenses (34%), and decreases for property-related offenses (30%) and drug offenses (25%) (Knoll & Sickmund, 2010). Black youth are 12% more likely than White youth to be formally processed and 9% more likely to be waived to adult court (Knoll & Sickmund, 2010). Of all the youth

Figure 2.6 Detention Rates Trends by Race (per 10,000 youth)

30 25 20 15 10 5 0 1997

1999 White

Source: W. Haywood Burns Institute.

37

2001

African American

2003 Latino

2006 Native American

38

FRAMING

waived to adult court, African American youth made up 37% of the waivers, compared with 59% of the waivers made up by White youth; however, it is for person and drug offenses that disproportionate minority numbers are most dramatic, as a greater percentage of Black youth are transferred into the adult system for these offenses than are White youth (Adams & Addie, 2010). Black youth are also 27% more likely to be placed in a residential setting and 14% less likely to be given probation compared to their White counterparts (Knoll & Sickmund, 2010). In 2002, three fourths of the 4,100 juveniles admitted to adult prisons were youth of color (Poe-Yamagata & Jones, 2007). Seventy-seven percent of juveniles serving life sentences are non-White, supporting research showing the cumulative and increasing disadvantage experienced by minorities as they move through the juvenile justice system (Nellis & King, 2009; Poe-Yamagata & Jones, 2007; see Bell & Mariscal, Chapter 6, this volume). Hispanic youth experience similar disproportionate minority contact to African American youth; however, these youth have been deemed largely “invisible” due to shortcomings in available data on ethnicity (Arya, Villarruel, Villanueva, & Augarten 2009; Poe-Yamagata & Jones, 2007; see Bell & Mariscal, Chapter 6, this volume). Fourteen states and the District of Columbia participated in a study that found that Latino/ a youth were sent to detention and residential facilities in the juvenile justice system more often their White counterparts and for longer periods of time (even when controlling for offense type and delinquent histories) (Villarruel & Walker, 2002). Nationally, 32% of youth incarcerated are Latino/a, based on figures from the U.S Census Bureau data on the incarcerated population in 2000 (Human

THE

ISSUES

Rights Watch, 2002). Latino/a youth were also transferred to adult court more frequently than their White counterparts (Villarruel & Walker, 2002). Geography The UCR does not break arrests down by specific geographical region and age; however, arrest rates are highest for juveniles who live in metropolitan areas, accounting for 12.1% of all arrests versus 8.8% of all arrests in nonmetropolitan areas (U.S. Department of Justice, 2008). Within metropolitan areas, juveniles make up 15.2% of all arrests in the suburbs and that number increases to 16.8% in cities. The highest rates of juvenile crime involvement in serious violent crimes (17.2%) and serious property crimes (26.8%) are found in cities (U.S. Department of Justice, 2008). Urban jurisdictions are also more likely than nonurban areas to impose harsher dispositions, a factor compounding minority representation due to the concentration of minority youth in urban areas (Snyder & Sickmund, 2006). The growth of the juvenile population has not been, and is not projected to be, evenly distributed among states. Between 2005 and 2015, Nevada, Arizona, Texas, and Florida are expected to experience the largest increases in their juvenile population. More than one third of the states are projected to experience a decline in this population, with North Dakota, Vermont, New York, West Virginia, Maine, and the District of Columbia projecting the most significant declines (U.S. Bureau of the Census, 2005). Disabilities and Mental Health Issues Youth with disabilities are overrepresented in the juvenile justice system, and this assessment

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement

typically occurs once a youth is involved in the juvenile corrections system. Having a disability, however, can also affect a youth’s experiences in the system (see Beyer, Chapter 1, this volume; Boundy & Karger, Chapter 14, this volume). For example, youth with disabilities may be more likely to confess or to have problems communicating with their lawyers (Muller, 2005). They are more likely to plead guilty, be committed, and serve a longer sentence, and less likely to have their sentence appealed, be placed on probation, or be given some type of diversion program (Muller, 2005). Youth with emotional disabilities account for about 8% of students with disabilities in the school system; however, this number goes up to 47% among a national sample of incarcerated youth (Quinn, Rutherford, Leone, Osher, & Poirier, 2005; U.S. Department of Education, 2005). This condition is characterized by an inability to build or maintain relationships, inappropriate behaviors or feelings under normal circumstances, a pervasive mood of unhappiness or depression, or a tendency to develop physical symptoms or fears related to personal or school problems as defined by the Individuals with Disabilities Education Improvement Act (2004). This population typically experiences co-occurring problems related to behavior, academics, drug use, and mental health (Gagnon & Richards, 2008). Approximately 20% of youth with emotional disturbances have been arrested, or are in detention or on probation prior to leaving school (Snyder & Sickmund, 2006). Thirty-nine percent of youth incarcerated in the juvenile justice system have learning disabilities and almost 5% meet the classification for mental retardation (Gagnon & Richards, 2008). The majority of youth entering correctional and detention settings are testing below skill level (66% below in reading and 68% below in mathematics) (U.S.

39

Department of Education, 2006). Youth with learning disabilities are three times more likely to join a gang than youth who are not disabled (Snyder & Sickmund, 2006). Mental health concerns and needs are also prevalent in this population. For example, in a large-scale study of Chicago-area youth in detention facilities, almost 60% of males and more than two thirds of females met the criteria for at least one psychiatric disorder, and more than 40% of the sample met the criteria for a disruptive behavior disorder (Teplin, Abram, McClelland, Dulcan, & Mericle, 2002). Significant variations were found in race and gender with females, non-Hispanic Whites, and older youth showing higher rates of most disorders (Teplin et al.). The connection between disabilities and mental health needs of youth in the juvenile justice system have been inadequately studied and addressed (Gagnon & Richards, 2008; see Braverman & Morris, Chapter 3, this volume).

JUVENILE JUSTICE SYSTEM REFORM A reform agenda in juvenile justice has clearly begun to take hold but needs empirical research to flourish (see Butts & Roman, Chapter 24, this volume). Research is needed in order to develop a more complete national picture of youth as they move through the system. If there were a rich and comprehensive national data collection effort, “who these kids and families are” might well help drive reform and the implementation of new strategies for intervention. At present, there are many descriptive factors that are simply not available that might better explain youth’s initial involvement in the system, as well as indicate how their circumstances change

40

FRAMING

as they move through the system. Currently, the diversity within juvenile court jurisdictions and the lack of standardization make it impossible to examine the effectiveness of various sanctions, or to glean a national picture of the youth, let alone identify the best predictors of recidivism. Some global deficiencies in current data collection efforts even make it difficult to determine the number of youth who are actually involved in the system. For example, the UCR and the juvenile court statistics are incident based, as opposed to offender based. This method of tracking incidents makes it almost impossible to identify high-rate offenders on a systemic level, let alone incidents that have multiple offenders/defendants (see Schneider & Simpson, Chapter 22, this volume). Similarly, the current method of systemic-level data collection makes it difficult to ascertain trends in less serious offenses, since typically only the most serious offense or most severe disposition is recorded. Likewise, currently reported statistics do not include the seriousness of the behavior (which may not match the charge all that well), contextual offense variables, or a youth’s prior offenses making cross-race and sex comparisons in processing problematic, for example. As previously mentioned, national level data sources on system-involved juveniles do not distinguish ethnicity, nor do they provide information on youth involved with multiple systems, particularly related to disability and mental health. Moreover, most juvenile justice and other youth agencies do not have the data capacity to work across agencies to view youth in their family and community contexts, leaving an incomplete snapshot of youth in individual systems (see Schneider & Simpson, Chapter 22, this volume). Effective reform requires the deeper understanding that greater data capacity and research would provide.

THE

ISSUES

REFERENCES Adams, B., & Addie, S. (2010). Delinquency cases waived to criminal court, 2007. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S. Government Printing Office. Akers, R. L., & Sellers, C. S. (2008). Criminological theories: Introduction, evaluation, and application. Los Angeles, CA: Roxbury. Allard, P., & Young, M. (2002). Prosecuting juveniles in adult court: The practitioner’s perspective. Journal of Forensic Psychology, 2 (2),65–77. American Correctional Association. (2008). 2008 Directory: Adult and juvenile correctional departments, institutions, agencies, and probation and parole authorities. Alexandria, VA: American Correctional Association. Arya, N. (2011). State trends: Legislative victories from 2005–2010 removing youth from the adult criminal justice system. Washington, DC: Campaign for Youth Justice. Arya, N., Villarruel, F., Villanueva, C., & Augarten, I. (2009). America’s invisible children: Latino youth and the failure of justice. Washington, DC: Campaign for Youth Justice. Beck, A., Harrison, P., & Guerino, P. (2010). Sexual victimization in juvenile facilities reported by youth, 2008–2009. Washington, DC: Bureau of Justice Statistics, U.S. Government Printing Office. Bernburg, J. G., & Krohn, M. D. (2003). Labeling, life chances, and adult crime: The direct and indirect effects of official intervention in adolescence on crime in early adulthood. Criminology, 41 (4), 1287–1318. Bishop, D. M. (2000). Juvenile offenders in the adult criminal justice system. In M. Tonry (Ed.), Crime and justice: A review of research (Vol. 27, pp. 81–167). Chicago, IL: University of Chicago Press. Bishop, D. M., & Frazier, C. E. (2000). Race effects in juvenile justice decision-making: Findings of a statewide analysis. Journal of Criminal Law & Criminology, 86, 392–414. Blumstein, A., Cohen, J., & Farrington, D. P. (1988). Criminal career research: Its value for criminology. Criminology, 26, 1–35. Bureau of Justice Statistics. (2008). Crime and victims statistics, 2007. Washington, DC: U.S. Government Printing Office. Butts, J. A., & Mears, D. P. (2001). Reviving juvenile justice in a get-tough era. Youth & Society, 33(2), 169–198.

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement Chesney-Lind, M. (1997). The female offender: Girls, women, and crime. Thousand Oaks, CA: Sage. Chesney-Lind, M., & Shelden, R. (2004). Girls, delinquency, and juvenile justice. Belmont, CA: Wadsworth. Day, J. C. (1996). Population projections of the United States by age, sex, race, and Hispanic origin: 1995 to 2050. Washington, DC: Bureau of the Census, U.S. Government Printing Office. Elliott, D. S., & Ageton, S. S. (1980). Reconciling race and class differences in self-reported and official estimates of delinquency. American Sociological Review, 45(1), 95–110. Elliott, D. S., Huizinga, D., & Ageton, S. S. (1985). Explaining delinquency and drug use. Beverly Hills, CA: Sage. Elliott, D. S., & Menard, S. (1996). Delinquent friends and delinquent behavior: Temporal and developmental patterns. In J. D. Hawkins (Ed.), Delinquency and crime: Current theories (pp. 28–67). New York, NY: Cambridge University Press. Federal Interagency Forum on Child and Family Statistics. (2009). America’s children: Key national indicators of well-being, 2009. Washington, DC: U.S. Government Printing Office. Feld, B. C. (1998). Juvenile and criminal justice systems’ responses to youth violence. In M. Tonry & M. H. Moore (Eds.), Crime and Justice: A Review of Research. Vol. 24: Youth Violence (pp. 189–261). Chicago, IL: University of Chicago Press. Forst, M. L., Fisher, B. A., & Coates, R. B. (1985) Indeterminate and determinate sentencing of juvenile delinquents: A national survey of approaches to commitment and release decision-making. Juvenile and Family Court Journal, 36 (2), 1–12. Frazier, C. E., Bishop, D. M., & Lanza-Kaduce, L. (1999). “Get tough” juvenile justice reforms: The Florida experience. Annals of the American Academy of Political and Social Science, 564, 167–184. Gagnon, J. C., & Richards, C. (2008). Making the right turn: A guide about improving transition outcomes of youth involved in the juvenile corrections system. Washington, DC: National Collaborative on Workforce and Disability for Youth, Institute for Educational Leadership. Graham v. Florida, 120 S. Ct. 2011, 78 USLW 4387 (2010). Holland, P., & Mlyniec, W. J. (1995). Whatever happened to the right to treatment? The modern quest for a historical promise. Temple Law Review, 68, 1791–1835.

41

Human Rights Watch. (2002). Backgrounders: Race and incarceration in the United States. New York, NY: Author. Human Rights Watch. (2008). The rest of their lives: Life without parole for youthful offenders in the United States. Executive summary. New York, NY: Author. In re Gault. (1967). The Supreme Court of the United States, 387 U.S. 1. In D. L. Parry (Ed.), Essential readings in juvenile justice (pp. 87–101). Upper Saddle River, NJ: Pearson Prentice Hall. In re Winship. (1970). The Supreme Court of the United States, 397 U.S. 358. In D. L. Parry (Ed.), Essential readings in juvenile justice (pp. 102–105). Upper Saddle River, NJ: Pearson Prentice Hall. Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, § 302, 118 Stat. 2803 (codified as amended at 20 U.S.C. § 1415 (2004). Retrieved from www.ed.gov/offices /osers/idea/the_law.html Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA) (P.L. 93-415, 88 Stat. 1109) and subsequent reauthorizations (1977, 1980, 1984, 1988, 1992, 2002). Kent v. United States. (1966). The Supreme Court of the United States, 383 U.S. 541. In D. L. Parry (Ed.), Essential readings in juvenile justice (pp. 79–86). Upper Saddle River, NJ: Pearson Prentice Hall. Knoll, C., & Sickmund, M. (2010). Delinquency cases in juvenile court, 2007. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S. Government Printing Office. Krezmien, M. P., Leone, P. E., Zablocki, M. S., & Wells, C. (2009) Juvenile court referrals and the public schools: Nature and extent of the practice of five states. Unpublished manuscript, University of Maryland. Krisberg, B. (2005). Juvenile justice: Redeeming our children. Thousand Oaks, CA: Sage. Lerner, R., Taylor, C. & von Eye, A. (Eds.). (2002). Pathways to positive development among diverse youth. Indianapolis, IN: Wiley. Livsey, S., Sickmund, M., & Sladky, A. (2009). Juvenile residential facility census, 2004: Selected findings. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S. Government Printing Office. Masten, A. S., & Powell, J. L. (2003). A resiliency framework for research, policy and practice. In Luthar, S. (Ed.), Resiliency and vulnerability: Adaptation in the context of childhood adversity (pp. 1–29). Cambridge, UK: Cambridge University Press.

42

FRAMING

Mears, D. P., & Travis, J. (2004). Youth development and reentry. Youth Violence and Juvenile Justice, 2(1), 3–20. Mennel, R. M. (1972). Origins of the juvenile court: Changing perspectives on the legal rights of juveniles. Crime and Delinquency, 18, 68–78. Mohr, H. (2008, March 2). 13,000 abuse claims in juvie centers. USA Today. Retrieved from www.usa today.com/news/nation/2008-03-02-1668706373 _x.htm Muller, E. (2005). The juvenile justice system and youths with disabilities. InForum: Brief Policy Analysis. Alexandria, VA: National Association of State Directors of Special Education. National Center for Health Statistics. (2008). Estimates of the July 1, 2000–July 1, 2007, United States resident population from the Vintage 2007 postcensal series by year, county, age, sex, race, and Hispanic origin. Retrieved from www.cdc.gov/nchs/about/major /dvs/popbridge/popbridge.htm Nellis, A., & King, R. S. (2009). No exit: The expanding use of life sentences in America. Washington, DC: Sentencing Project. Nye, F. I., Short, J. F., & Olson, V. (1958). Socioeconomic status and delinquent behavior. American Journal of Sociology, 63, 381–389. Office of the Surgeon General. (2001). Youth violence: A report to the Surgeon General. Washington, DC: U.S. Department of Health and Human Services. Retrieved from www.surgeongeneral.gov/library /youthviolence Osgood, D. W., O’Malley, P. M., Bachman, J. G., & Johnston, L. D. (1989). Time trends and age trends in arrests and self-reported illegal behavior. Criminology, 27 (3), 389–418. Poe-Yamagata, E., & Jones, M. A. (2007). And justice for some: Differential treatment of youth of color in the justice system. Oakland, CA: National Council on Crime and Delinquency. Pollard, J. A., Hawkins, J. D., & Arthur, M. (1999). Risk and protection: Are both necessary to understand diverse behavioral outcomes in adolescence? Social Work Research, 23(3), 145–158. Pope, C. E., Lovell, R., & Hsia, H. M. (2002). Disproportionate minority confinement: A review of the research literature from 1989 through 2001. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S. Government Printing Office. President’s Commission on Law Enforcement and Administration of Justice. (1967). The task force report:

THE

ISSUES

Juvenile delinquency and youth crime. Washington, DC: U.S Government Printing Office. Puzzanchera, C., Adams, B., & Sickmund, M. (2010). Juvenile court statistics 2006–2007. Pittsburgh, PA: National Center for Juvenile Justice. Puzzanchera, C., & Sickmund, M. (2008). Juvenile court statistics 2005. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S. Government Printing Office. Quinn, M. M., Rutherford, R. B., Leone, P. E., Osher, D. M., & Poirier, J. M. (2005). Youth with disabilities in juvenile corrections: A national survey. Exceptional Children, 71, 339–345. Saleebey, D. (2005). The strengths approach to practice. In D. Saleebey (Ed.), The strengths perspective in social work practice (4th ed., pp. 49–58). Boston, MA: Allyn & Bacon. Scott, E., & Steinberg, L. (2008). Rethinking juvenile justice. Cambridge, MA: Harvard University Press. Sherman, F. (2005). Juvenile detention reform for girls: Challenges and solutions. Baltimore, MD: Annie E. Casey Foundation. Sickmund, M. (2009). Delinquency cases in juvenile court, 2005. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S. Government Printing Office. Sickmund, M., Sladky, A., & Kang, W. (2008). Easy access to juvenile court statistics: 1985–2005. Retrieved from www.ojjdp.ncjrs.gov/ojstatbb/ezajcs/ Skiba, R. J. (2000). Zero tolerance, zero evidence: An analysis of school disciplinary practice. Bloomington: Indiana Education Policy Research Center. Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 national report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S. Government Printing Office. Teplin, L. A., Abram, K. M., McClelland, G. M., Dulcan, M. K., & Mericle, A. A. (2002). Psychiatric disorders in youth in juvenile detention. Archives of General Psychiatry, 59, 1133–1143. Torbet, P., Gable, R., Hurst, H., Montgomery, I., Szymanski, L., & Thomas, D. (1996). State responses to serious and violent juvenile crime: Research report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S. Government Printing Office. U.S. Bureau of the Census. (2005). Interim projections of the population by selected age groups for the United States and the States: April 1, 2000 to July 1, 2030

Youth in the Juvenile Justice System: Characteristics and Patterns of Involvement

[Data file]. Retrieved from www.census.gov /population/projections/SummaryTabC1.pdf U.S. Department of Education. (2005). Twenty-seventh annual report to congress on the implementation of the Individuals with Disabilities Education Act. Jessup, MD: Education Publications Center. U.S. Department of Education. (2006). National Evaluation and Technical Assistance Center for the Education of Children and Youth Who Are Neglected, Delinquent, or At Risk (NDTAC). State and national fast facts. Retrieved from www.neglecteddelinquent.org U.S. Department of Justice. Federal Bureau of Investigation. (1981). Crime in the United States, 1980. Retrieved from www.fbi.gov/ucr U.S. Department of Justice. Federal Bureau of Investigation (2008). Crime in the United States, 2007. Retrieved from www.fbi.gov/ucr U.S. Department of Justice. Federal Bureau of Investigation (2009). Crime in the United States, 2008. Retrieved from www.fbi.gov/ucr

43

U.S. Department of Justice. Federal Bureau of Investigation (2010). Crime in the United States, 2009. Retrieved from www.fbi.gov/ucr Villarruel, F. A., & Walker, N. E. (2002). ¿Donde esta la justicia?: A call to action on behalf of Latino and Latina youth in the U.S. justice system. Washington, DC: Building Blocks for Youth. W. Haywood Burns Institute. For Juvenile Justice Fairness and Equity. DMC Fact Sheet, www.burnsinstitute .org/downloads/BI%20DMC%20Fact%20Sheet.pdf Wald, J., & Losen, D. J. (2003). Defining and redirecting a school-to-prison pipeline. New Directions for Youth Development, 99, 9–15. Williams, J. R., & Gold, M. (1972). From delinquent behavior to official delinquency. Social Problems, 20(2), 209–229. Zahn, M. A., Brumbaugh, S., Steffensmeier, D., Feld, B. C., Morash, M., Chesney-Lind, M., . . . Kruttschnitt, C. (2008). Violence by teenage girls: Trends and context. Washington, DC: Office of Juvenile Justice and Delinquency.

Juvenile Justice: Advancing Research, Policy, and Practice Edited by Francine T. Sherman and Francine H. Jacobs Copyright © 2011 John Wiley & Sons, Inc.

CHAPTER

3

The Health of Youth in the Juvenile Justice System PAULA BRAVERMAN

AND

ROBERT MORRIS

T

his chapter begins with a detailed profile of the physical and mental health of youth currently in the juvenile justice system and an overview of some of the salient findings presented in these studies. The data offered confirm, unsurprisingly, that these youth have greater health challenges and less access to quality health care than would be considered acceptable in most communities in this country. Although juvenile justice involvement may provide an opportunity to improve the health of these youth by providing services that may not be available or accessible at home, being incarcerated can also compromise their health and well-being. Clearly, the more potentially efficacious point at which to intervene is before youth enter the system altogether. The second section of this chapter, then, provides an ecological view of the factors associated with both juvenile delinquency and poor health status, in an attempt to stimulate the thoughtful development and implementation of primary prevention efforts to address these two overlapping concerns.

(Council on Scientific Affairs, 1990; Golzari, Hunt, & Anoshiravani, 2006) who commonly present with unaddressed physical and mental health needs at higher rates than the general adolescent population (Forrest, Tambor, Riley, Ensminger, & Starfield, 2000; Morris et al., 1995; Sedlak & Bruce, 2010; Sedlak & McPherson, 2010). Although many of their health problems are the same as youth in their age group (e.g., dermatologic, respiratory, dental, gastrointestinal, genitourinary, and metabolic problems), youth in the juvenile justice system are at greater risk for other medical issues. In part, this is because many of these youth engage in high-risk behaviors, including violence, substance abuse, and unsafe sexual activity (Morris et al., 1995; Litt & Cohen, 1974). A recently published study summarized data from the Survey of Youth in Residential Placement (SYRP). This survey, conducted by the Office of Juvenile Justice and Delinquency Prevention (OJJDP), utilized audio computerassisted self-interview surveys from a representative sample of 7,073 youth age 10–20 years in residential placement throughout the United States in the spring of 2003 (Sedlak & McPherson, 2010). This self-reported information obtained directly from youth echoes and confirms the other published studies in the literature, which report on specific clinical

OVERVIEW Youth entering correctional facilities are a high-risk, medically underserved population 44

The Health of Youth in the Juvenile Justice System

data obtained by health-care professionals. The SYRP report also clearly demonstrates the disconnect between the need for physical and mental health services and the provision of appropriately matched services for youth in custody. In this chapter, we sketch out the dimensions and characteristics of these health needs.

PHYSICAL HEALTH This section provides an overview of the health needs of youth in custody. Where available, more detail is provided on specific physical health conditions. Extent of Health Problems Data from the SYRP provide an overview of the extent of health needs among youth in custody (Sedlak & McPherson, 2010). Approximately two thirds of youth reported a physical health-care need including dental, vision, or hearing (37%); illness (28%); injury (25%); and other unspecified physical health problems (29%). Males were more likely than females to report treatment needs related to injuries while females were more likely than males to report health-care needs related to illness, vision, dental, and hearing. This data are similar to other previously published studies described below which, although not in most cases nationally representative data, provide additional detail not presented in the SYRP report. The most comprehensive study evaluating the health issues of youth in the juvenile justice system was published in 1980 and described 88,106 youth admitted over 11 years to a secure detention facility in New York (Hein et al., 1980). In that survey, 46% of youth were found to have a medical problem. The

45

diagnoses ranged from minor dermatologic complaints to traumatic injuries, drug overdoses or drug abstinence, psychiatric issues, and other body systems complaints. Particular note was made of dental issues, positive tuberculosis tests, sexually transmitted diseases, pregnancy, abnormal Pap smears, and signs of abuse and medical neglect. Of the 3,353 teens admitted to the infirmary, 20% had unresolved medical problems that required follow-up after release from detention. Two studies provide a national perspective on the risk taking behaviors that contribute to health problems among juvenile justice youth. The first is a 1991 survey conducted by the National Commission on Correctional Health Care included 1,801 minors from 39 correctional facilities in the United States (Morris et al., 1995). These youth were predominantly younger than age 18 (mean age of 15.4 years old in short-term facilities and 15.8 years old in long-term facilities) and had rates of substance abuse, trauma, sexual activity without protection, suicidal ideation, and violence that were higher than general high school populations. The recently published SYRP confirmed the high rates of self-reported mental and emotional problems, substance abuse, and traumatic experiences. This report included a comparison of reported alcohol and drug use to data from the 2003 National Survey on Drug Use and Health demonstrating higher lifetime use among youth in custody (Sedlak & McPherson, 2010). Another recent study of 819 youth admitted to a detention center in Alabama over an 18-month period in the mid-1990s found that 16.5% had been hospitalized prior to detention for sports injuries, trauma, or medical reasons (Feinstein et al., 1998). Over one third had medical problems related to trauma from fights or stab and gunshot wounds. Of the

46

FRAMING

youth studied, 16.7% had received previous treatment for mental illness, and 6.7% had been treated for substance abuse. In addition, 6.4% reported being on a prescription medication at the time of admission. The most common condition was asthma, with others including orthopedic problems (scoliosis, fracture), mental illness, pregnancy, and hearing problems (chronic otitis media, perforated tympanic membranes). Moreover, 10.6% had a medical condition that required medical follow-up after release. Similar results were found among a broader sampling of youth in 15 detention and long-term facilities in the Maryland Juvenile Justice System during the same time period (Shelton, 2000). In that study, over 45% had an identified medical condition. Specific Health Conditions The following section provides more detail on several specific health conditions. Trauma As discussed by Feinstein et al. (1998), the causes of injury in these youth are diverse (see Baker, Cunningham & Harris, Chapter 11, this volume). Several additional studies provide detail. In the 1991 National Commission on Correctional Health Care (NCCHC) study, almost 70% of youth had been involved in at least one fight in the previous year, and one quarter of these youth had resulting injuries that required medical care (Morris et al., 1995). Three quarters of these youth reported that a weapon was involved in at least one of these fights. Selfinjury was also common, with one fifth having considered suicide, 15.5% making at least one attempt, and 8.2% injured during an attempt in the previous year. In the Maryland study, almost one fifth had an injury, including burns, musculoskeletal, and head trauma, with 12%

THE

ISSUES

reporting lack of treatment for these injuries (Shelton, 2000). Additional detail about the nature of traumatic events was provided by Woolf and Funk (1985) in a review of almost all the medical records (369) of 10- to 17-yearolds who were admitted to a secure residential facility in North Carolina over a 4.5-year period beginning in 1978. One quarter of these youth were female, and over half had an injury requiring medical attention. One third of injuries were sports related, 20% caused by fights, 13% self-inflicted, 9% suicide attempts, 8% vocational, 3% horseplay, and 11% designated as “other.” Musculoskeletal injury (33%) was most common, followed by scratches/bruises (27%). Fourteen percent had lacerations requiring closure; 7% had a fracture; and over one quarter required referral outside the facility for further evaluation. The authors concluded that facilities must pay attention to maintaining physical safety from accidental and purposeful injury, including suicide attempts. Dental Dental issues also stand out as a significant health problem for youth in the juvenile justice system. Bolin and Jones’s (2006) study of a random sample, including 419 dental screenings conducted on 12- to 17year-olds from the Juvenile Detention Center in Dallas County, Texas, between September 1999 and December 2003, found that one half had untreated decay. High-urgency dental problems, such as infection, tooth or jaw fracture, pulpitis, or severe periodontal disease with bleeding, were identified in 6.2% of youth. Moderate-urgency conditions in 13.1% included cavitated asymptomatic decay or moderate gingivitis. This study highlighted the challenges in providing comprehensive dental care to this population unless they are long-term detainees.

The Health of Youth in the Juvenile Justice System

Reproductive Health Youth in the juvenile justice system engage in high-risk behaviors including unprotected sexual activity, which place them at risk for sexually transmitted diseases and HIV infection, as well as pregnancy and parenthood. The following sections provide additional information on reproductive health issues among these youth. Sexual Activity/Contraception Adolescents in the juvenile justice system have high rates of sexual activity and sexually transmitted diseases (STDs) compared to other adolescent populations. The 1991 NCCHC study found that most of these youth had four or more lifetime sexual partners (Morris et al., 1995), a rate much higher than reported during that same time frame in the general population of high school youth. Similarly, STD incidence was double that of the general population. Use of contraception or condoms at last intercourse was reported by three quarters of high school youth compared to only one half of incarcerated youth, and 40–50% of high school youth used condoms as compared to less than one fifth of incarcerated youth. STD/HIV The Centers for Disease Control and Prevention’s (CDC) 2009 Sexually Transmitted Disease Surveillance Report (CDC, 2010) found that the overall rate of chlamydia positivity among detained adolescent girls age 12–18 was 14.8% (4.7% for females age 12 and 16.2% for those age 16) while adolescent boys had an overall positivity rate of 6.6% (1.2% for males age 12 and 10.1% for those age 18). The overall rate of gonorrhea positivity for females was 3.9% (1.8% for females age 12 and 4.4.% for those age 16), while the overall positivity rate for males was 1.0% (0.1% for males age 12 and 1.4% for those age 18). Rates for syphilis, which are available in the 2007

47

Sexually Transmitted Disease Surveillance Report (CDC, 2008a), were much lower, with the median rate of a serologic positivity of 0.2% (0.0–2.1%) for adolescent girls and 0.1% (0.0–0.9%) for adolescent boys. These rates are similar to data collected in a comparable study conducted between 1996 and 1999 (Mertz, Voight, Hutchins, Levine, & Jail STD Prevalence Monitoring Group, 2002). Results from one juvenile detention facility (Oh et al., 1994) found that 50% of gonorrhea and 90% of chlamydia infections were asymptomatic, while another study (Mertz et al., 2002) found even higher rates of asymptomatic infection, with only 2.7% of those with chlamydia and 7.3% of those with gonorrhea having symptoms. These studies indicate that most STDs will be diagnosed only by active screening. Unprotected sex with multiple partners, prostitution, injection drug use, and substance abuse by incarcerated youth puts them at risk for hepatitis B and C as well as HIV infection. The high rate of STDs also increases risk for HIV (CDC, 2008b; Elkington et al., 2008; Harwell, Trino, Rudy, Yorkman, & Gollub, 1999; Kim, McFarland, Kellogg, & Katz, 1999; Morris, Baker, Valentine, & Pennisi, 1998; Teplin, Mericle, McClelland, & Abram, 2003). The rate of hepatitis B in incarcerated adolescents ranges from 0–6% and the prevalence of hepatitis C virus is 2–3.5% (Weinbaum, Lyerla, & Margolis, 2003). Youth aged 13–17 admitted to a juvenile detention center in San Francisco between 1990 and 1995 showed an HIV-1 antibody–positive prevalence of 0.32% among 2,780 tests conducted (Kim et al., 1999). Serum specimens collected between 1990 and 1992 from adolescents in 33 correctional facilities found a rate of 0.3% (range 0–6.8%) (Sweeney, Lindegren, Buehler, Onorato, & Janssen, 1995). Despite the documented need for identifying youth with STDs, the 2004 Juvenile

48

FRAMING

Residential Facility Census reported that only 18.5% of facilities offered STD testing for all adolescents on admission (Gallagher & Dobrin, 2007). Further, 8.3% of facilities did not make STD testing available, and the rest provided testing only when it was requested or deemed medically necessary. Similarly, only 4.3% of the facilities tested all youth for HIV, and 28.1% did not have HIV testing available. Pregnancy/Parenting Self-reported rates of parenthood among incarcerated teens are higher than in the general adolescent population. The nationally representative SRYP study found that 14% of youth in custody in 2003 reported having a child. Males (15%) were more likely to report having a child than females (9%). This compares to rates of 2% for males and 6% for females age 12–20 in the general population. Of those who were already parents, 12% were expecting another child indicating a female who was currently pregnant or a male whose female partner was pregnant. Overall, 20% of both males and females in the SYRP study were already parents or expecting a child (Sedlak & Bruce, 2010). These SYRP data add information to other studies, which have found that approximately one third of teens in juvenile correction facilities report that they have ever been pregnant (Lederman, Dakof, Larrea, & Hua, 2004; Williams & Hollis, 1999). The 2004 Juvenile Facilities Census study reported that at least 2.1% of girls are currently pregnant at any particular point in time (Gallagher, Dobrin, & Douds, 2007). Further in-depth study of pregnancies in the juvenile justice population is needed, since teen pregnancy rates vary by race/ethnicity, geographic location, and socioeconomic level and are continuously evolving. Fatherhood among adolescent males is also an important issue that needs further

THE

ISSUES

investigation. One study, of 125 adolescent males age 14–17 incarcerated in a juvenile correctional facility in 1994, found that one quarter had fathered a pregnancy and of those who were fathers, 41% had fathered more than one pregnancy (Nesmith, Klerman, Oh, & Feinstein, 1997). Pregnancies in these youth are complicated by underlying problems of substance abuse, posttraumatic stress disorder, and complex decisions about postdelivery options (Hufft, 2004). In addition, these young women may need an altered schedule with additional rest and may have higher caloric requirements. Most juvenile justice facilities do not have arrangements for infant residency or visitation, and the majority of facilities do not have parenting classes (Breuner & Farrow, 1995; Hufft, 2004; see Pinderhughes, Craddock, & Fermin, Chapter 9, this volume). Attention must be paid to the potential for postpartum depression and other psychological consequences. Despite these high pregnancy rates and the constellation of health issues they raise, the 2004 Juvenile Facilities Census found that only 15–17% of all facilities had universal pregnancy testing of all girls on admission (Gallagher, Dobrin, & Douds, 2007). Further, 4.5–6.6% did not provide pregnancy testing, and the rest performed testing only when it was deemed medically necessary or requested by the adolescent. Prenatal services are also lacking in some correctional facilities and approximately one quarter to one third of facilities had no obstetrical services (Gallager, Dobrin, & Douds, 2007). Another study with data from 430 facilities in 41 states found that one third failed to provide prenatal services and 60% of the facilities with detained pregnant youth had at least one obstetrical complication (Breuner & Farrow, 1995).

The Health of Youth in the Juvenile Justice System

MENTAL HEALTH AND SUBSTANCE ABUSE Currently available studies indicate that adolescents involved in the juvenile justice system have rates of psychiatric and substance abuse disorders that exceed those of the general adolescent population (Desai et al., 2006; Fazel, Doll, & Langstrom, 2008; Vermeiren, Jespers, & Moffitt, 2006). Some authors have suggested that the juvenile justice system has become the placement of last resort for youth with mental health disorders who are not receiving care in their communities (Martin, 2006; see also Beyer, Chapter 1, this volume). The SYRP (Sedlak & McPherson, 2010) does not provide diagnostic data; however, the report demonstrates the extent of self-reported mental and emotional problems. More than 60% of youth reported being easily upset, quick to lose their temper, and often angry. Fifty-one percent reported being unable to do what they wanted over the previous several months because of worry or being nervous and 52% felt lonely “too much of the time.” Determining the exact prevalence of these mental health and substance abuse disorders, including the specific subcategories of mental health diagnoses, has been challenging. A significant proportion of adolescents have multiple diagnoses (comorbidity) and/or

49

co-occurring psychiatric and substance abuse diagnoses. While there are no national prevalence statistics on specific mental health diagnoses available for this population in the United States, studies from both the United States and other countries show prevalence rates ranging from approximately 50% to 100% when disruptive behavior disorders are included (Boesky, 2002). It is estimated that approximately one quarter of youth in the juvenile justice system have a severe mental health disorder that requires immediate treatment (Shufelt & Cocozza, 2006). Study Limitations The difficulty in determining the exact extent of mental health and substance abuse problems is related to the fact that most of the published studies have limitations in study design and data collection methodology (see Table 3.1). A few of these limitations warrant further discussion. The timing of the reported evaluations varied from the detention setting to longer term facilities. This is important because the stress of incarceration may affect the accuracy of mental health diagnoses, exacerbating various symptoms including suicidal ideation and self-injury/mutilation behaviors (Boesky, 2002). In addition, the source of information is also crucial and varies in these studies. Many studies

Table 3.1. Limitations and Variations Within the Literature on Reports About Mental Health and Substance Abuse Disorders Among Youth in the Juvenile Justice System  Data are specific to certain states and individual facilities or are from other countries.  Nonstandardized measures and different diagnostic instruments or techniques are used.  Sociodemographic variables such as age, gender, ethnicity, family environment, socioeconomic status, and criminal behavior are not comparable.  The timing of the evaluation varies from recent detention to postadjudication settings.  Potential bias exists based on selection of youth referred for psychiatric assessment.  Input from parents or teachers is not always added to youth self-report. Sources: Boesky, 2002; Shufelt, 2006; Teplin et al., 2002; Vermeiren, 2006.

50

FRAMING

rely on self-reported impairment by youth, which may not be as accurate as when observations by parents and others, such as teachers, are included (Vermeiren et al., 2006). However, information from other informants is not always helpful. While one study found that one third of parents added substantial new information (Ko, Wasserman, McReynolds, & Katz, 2004), other studies found that adolescents actually reported higher rates of disorder and impairment than did their parents (Ko et al., 2004; Kramer et al., 2004). Certainly, reports from parents or other adults may lead to incorrect diagnoses when they include inaccurate or biased information (Boesky, 2002; Ko et al., 2004; Kramer et al., 2004). Parents and other adults may not be cognizant of the adolescent’s behavior or symptoms or may deny existing problems or accept different levels of behavior (Boesky, 2002; Vermeiren et al., 2006). The variation in sociodemographic variables between studies is important because mental health disorders result from a combination of inherited biological or psychological vulnerabilities, along with environmental stressors and supports as well as individual coping skills (Vermeiren et al., 2006). Studies of small samples of girls or ethnic minorities may significantly limit the interpretation of data since mental health diagnoses vary by gender and ethnicity (Shufelt & Cocozza, 2006; Teplin, Abram, McClelland, Dulcan, & Mericle, 2002). Comparisons within and between studies is also complicated by the fact that these youth have been exposed to different environmental experiences, which may include family conflict, physical and sexual abuse, domestic violence, neglect, experience with the foster care system, parental mental health and substance abuse, exposure to violence in their community, and easier access to drugs and alcohol (Boesky, 2002; Vermeiren et al., 2006).

THE

ISSUES

Prevalence Youth in the juvenile corrections system have a high prevalence of psychiatric and substance abuse disorders, with noted differences in rates when considering race/ethnicity and gender. These disorders also do not occur in isolation. Co-morbid psychiatric disorders and co-occurring psychiatric and substance abuse disorders have been documented in multiple studies. Overall Prevalence Based on a review of the worldwide literature from the 1960s through the 1990s, Roberts, Attkisson, and Rosenblatt (1998) found a mean prevalence rate of 16.5% (range 6.2%–41.3) for mental health disorders among adolescents in the general population. This compares to estimates of 50–100% of youth in the juvenile justice system with mental health disorders when conduct disorder is included (Boesky, 2002). The issue of whether to include disruptive behavior disorders such as conduct disorder in the prevalence analyses has been raised in the literature as an interesting issue, since conduct disorder diagnoses may reflect behavior that the juvenile will age out of naturally. When assessing selfreported behavior among adolescents, delinquency is very common, and multiple studies have demonstrated that the majority of adolescents in the general population participate in behaviors that would be considered delinquent (Moffitt, 1993). These behaviors are usually transient and part of the normal adolescent development, which include imitation of antisocial models/styles and social reinforcement. In fact, most of the adolescent offenders (85%) known to the criminal justice system stop offending by age 28 and severe persistent antisocial behavior over time is only found in approximately 5% of males. Those youth with early onset in childhood are more likely to be

The Health of Youth in the Juvenile Justice System

persistent than those who begin these behaviors during adolescence (Moffitt, 1993; Ruchkin, Koposov, Vermeiren, & Schwab-Stone, 2003). Until recently, the 1991 NCCHC study was the only published multisite study in the United States that identified self-reported substance use and mental health risk behaviors among youth in corrections (Morris et al., 1995). This study found that more than 80% of these youth had smoked cigarettes and almost all had tried alcohol. Although marijuana was the most commonly used illicit drug, 25.6% of females and 13.1% of males had used other drugs including injection drugs. Suicidal thought in the previous 12 months was not uncommon, with 21.8% having seriously considered suicide, 19.5% having made a plan, 15.5% with at least one attempt, and 8.2% having been injured by an attempt in the previous 12 months. The 2003 SYRP study (Sedlak & McPherson, 2010) found that 85% of youth had lifetime use of “any illegal drug,” and 50% had used an illegal drug other than marijuana. Lifetime alcohol use was reported by 74% of those surveyed, while 84% had used marijuana/hashish, 30% cocaine/crack, 26% ecstasy, 22% crystal meth, 19% acid/LSD, and 7% heroin. More than one half of these youth reported being drunk or high on drugs multiple times a week during the months leading up to being in custody. In addition, one fifth of those surveyed reported prior suicidal ideation; 22% had past suicide attempts. In order to better characterize the specific mental health and substance abuse issues among these youth, several recently published studies have attempted to eliminate some of the previous study design issues by using randomly selected youth, including more ethnic/racially diverse subjects, and using standardized screening and assessment instruments (Shufelt & Cocozza, 2006; Teplin et al., 2002;

51

Wasserman, McReynolds, Ko, Katz, & Carpenter, 2005; Wasserman, McReynolds, Lucas, Fisher, & Santos, 2002). All of these studies utilized versions of the Diagnostic Interview Schedule for Children (DISC), a highly structured psychiatric interview based on the Diagnostic and Statistical Manual criteria. The Teplin study, conducted between 1995 and 1998, involved 1,829 youth at the Cook County Juvenile Temporary Detention Center; Wasserman and colleagues’ studies, conducted in 1998 and 2001, involved 991 youth at probation intake in eight Texas counties and 292 youth in secure placement in New Jersey and Illinois. Shufelt’s 2006 study included youth from three previously understudied areas—Louisiana, Texas, and Washington— and involved over 1,400 youth from 29 different programs and facilities with oversampling of two understudied populations: Hispanic and Native American youth. A comparison of the results of these newer studies shows consistent findings, including prevalence rates within a smaller range of 45.7–70.4% for psychiatric and substance abuse diagnoses. Both the Teplin and Shufelt studies were able to demonstrate that the prevalence rates were not explained solely by disruptive behavior disorders, as both authors similarly found that when conduct disorder was eliminated from the diagnostic categories, 60.9% (Teplin) and 66.3% (Shufelt) of youth had a psychiatric or substance use disorder. Shufelt found that 45.5% of youth still had mental health diagnoses when both substance use and conduct disorder were eliminated, indicating a high level of mental illness in this population. Table 3.2 compares the results of these studies. Comorbid and Co-occurring Disorders Comorbidity of two or more psychiatric diagnoses as well as co-occurring psychiatric and

52

FRAMING Table 3.2. Estimated Rates of Mental Health Disorders from Studies Conducted 1995–2006

Disorder

Rate Males %

Rate Females %

Any Disorder Any Affective Major depressive Any Anxiety Disorder1 Generalized anxiety Panic disorder Obsessive-compulsive Separation anxiety disorder2 Any Disruptive Behavior3 ADHD Oppositional–defiant Conduct disorder Any Substance Abuse

44.8–68.5 5.9–18.7 5.1–13 17.4–26.4 2.1–7.1 0.3–4.8 4.8–8.3 12.9–25.1 20–44.9 1.2–16.6 3.1–14.5 18.3–37.8 26.3–50.7

49.5–81.0 13.0–29.2 11.4–21.6 29.0–56.0 3.1–7.3 1.5–3.0 5.7–10.6 18.6–32.8 20–51.3 0.5–21.4 10.5–17.5 16.8–40.6 22–55.1

1 Only Teplin (2002) included “separation anxiety” in the data for the “Any Anxiety” category. 2 Separation anxiety disorder subcategory data is from Teplin (2002) and Wasserman (2005). 3 Teplin (2002) did not include ADHD under the “Any Disruptive Behavior” category; ADHD was reported as a separate category. Note: All subcategories under the bolded “Any” headings are from Teplin (2002) and Wasserman (2002, 2005). Sources: Shufelt et al., 2006; Teplin et al., 2002; Wasserman et al., 2002, 2005.

substance abuse disorders have been documented in multiple studies in the United States and other countries (Abram, Teplin, McClelland, & Dulcan, 2003; Atkins et al., 1999; Dixon, Howie, & Starling, 2004; Domalanta, Risser, Roberts, & Risser, 2003; Lederman et al., 2004; Robertson, Dill, Husain, & Undesser, 2004; Shufelt & Cocozza, 2006; Teplin et al., 2002; Ulzen & Hamilton, 1998; Vreugenhil, Doreleijers, Vermeiren, Wouters, & van Den Brink, 2004). In the study by Shufelt and Cocozza (2006), 79% of youth with a mental health disorder had two or more diagnoses with 60% having three or more mental health diagnoses. Further, 60.8% of youth with a mental health diagnosis also had a co-occurring substance use disorder, and this association was more common among youth with disruptive behavior disorders and mood disorders. Youth with substance use

THE

ISSUES

disorders commonly abuse multiple substances. McClelland, Elkington, Teplin, and Abram (2004) found that approximately one half of youth had one or more and one fifth had two or more substance use disorders. For those with an alcohol use disorder, 80% also had a drug use disorder, and for those with a drug use disorder, 50% also had an alcohol use disorder. Youth who have substance use problems are more likely to engage in high-risk sexual behavior, which places them at increased risk for STDs and HIV/AIDS. This increased risk includes youth with co-occurring substance use and other mental health diagnoses (Teplin et al., 2005). Racial/Ethnic Differences Utilizing a standardized diagnostic tool, Teplin et al. (2002) found that non-Hispanic whites had the highest rates of mental health disorders, and African American youth had the lowest. Hispanic youth fell in between these two groups. This difference, however, does not mean that minority youth do not have mental health/substance abuse treatment needs. In fact, concern has been raised in the literature that the actions of minority youth may be considered simply criminal behavior rather than the result of an emotional problem, making it more likely for them to become involved in the criminal justice rather than the mental health system (Boesky, 2002). Successful access to services may also be affected by important racial and/or ethnic differences in attitudes toward diagnosis and treatment of mental health and substance abuse. Some insight can be found from a qualitative study utilizing focus groups of African American youth in a detention center with diagnosed mental health disorders (Shelton, 2004). Youth in this study believed it was unacceptable to have a mental health disorder, and some were secretive about their experiences with mental

The Health of Youth in the Juvenile Justice System

illness, illustrating the need for awareness about cultural issues in the diagnosis and treatment of mental illness. Low mental health service utilization among African American and Hispanic youth when compared to non-Hispanic white youth was also addressed by Rawal, Romansky, Jenuwine, and Lyons (2004). They found a need for addition services since all youth, regardless of race or ethnicity, had low service utilization rates. However, minority youth had evidence of more multisystem needs, and African American youth had higher scores for caregiver problems including motivation to provide care. They note that lower mental health service utilization among minorities may be related to a culture that places a stigma on mental health issues and relies on family members and non-mental health professionals. Gender Differences The better designed studies consistently found that females are more likely than males to have any psychiatric disorder, and specifically to be diagnosed with internalizing disorders such as anxiety and mood disorders (Shufelt et al., 2006; Teplin et al., 2002; Wasserman et al., 2005). In general, both females and males had similar rates of substance use disorders. However, within the category of substance abuse, Teplin and colleagues (2002) found that females had higher rates of a substance use disorder other than alcohol or marijuana. Another problem more commonly found among females is physical, sexual, and emotional abuse (Mason, Zimmerman, & Evans, 1998; McCabe, Lansing, Garland, & Hough, 2002). These findings were confirmed in the nationally representative data in the SYRP report (Sedlak & McPherson, 2010). Victims of physical or sexual abuse engage in riskier sexual behavior compared to their peers who do not report abuse (Hayes, 2009;

53

Mason et al., 1998). As documented in data collected in the 1991 NCCHC study, victims of sexual abuse also had a twofold increased likelihood of reporting a history of STD as well as suicidal ideation, and suicide attempts (Morris et al., 1995). As summarized in a recent OJJDP report, when considering both genders, rates of physical abuse vary from 11% to 73%, while sexual abuse ranges from 10% to 68% (Hayes, 2009). The SYRP data showed that, in a nationally representative sample, 42% of females and 22% of males reported past physical abuse while 35% of females and 8% of males experienced prior sexual abuse (Sedlak & McPherson, 2010). Specific Mental Health Disorders Published studies provide additional information on specific mental health disorders among youth in the juvenile justice system. Posttraumatic Stress Disorder (PTSD)/ Dissociative Disorder Several studies have specifically addressed PTSD and trauma with dissociation among delinquent youth. In addition to having higher rates of PTSD than general community samples, delinquent youth also report significant histories of witnessing and experiencing interpersonal violence. Dissociative disorder, which is associated with abuse and neglect, is also found in this population (Abram et al., 2004; Carrion & Steiner, 2000; Cauffman, Feldman, Waterman, & Steiner, 1998; Ford, Chapman, Hawke, & Albert, 2007; Steiner, Garcia, & Matthews, 1997). Suicide Suicidal ideation and suicide attempts are a major concern for youth in the juvenile justice system. Both the 1991 NCCHC study and 2003 SYRP found that a history of suicidal ideation and attempts were common in this population (Morris et al.,

54

FRAMING

1995; Sedlak & McPherson, 2010), and several studies utilizing nationally representative samples have been published specifically addressing suicide within juvenile facilities. The first was a national census of public and private juvenile justice facilities in the United States during the years 2000 and 2002, which found that the leading cause of death in these facilities was suicide (20 out of 62 deaths) (Gallagher & Dobrin, 2006a). The second study included an analysis of suicides between 1995 and 1999 in public and private juvenile facilities and found that staff should be aware of most suicidal youth because a history of mental illness, as well as a current diagnosis of depression, was found in two thirds of victims and more than onehalf were taking a psychotropic medication (Hayes, 2009). In that study, hanging was the method of suicide in virtually all (98.7%) of the cases and two thirds of victims were in single occupancy rooms. Approximately one half of the deaths occurred between 6 PM and midnight, which includes the time frame youth were less likely to be alone. For those on room confinement, they were most likely to commit suicide during waking hours when they should have been involved in other interactive activities. This study suggests the need for further research to better understand the reasons for and role of confinement in suicide attempts in juvenile facilities. Reduction in suicides among juveniles in confinement may be possible by suicide risk screening and training staff in suicide prevention, as these efforts resulted in lower rates of suicide in the facilities described in an OJJDP report (Hayes, 2009). This finding is similar to that of Gallagher and Dobrin (2006b), that facilities screening all youth within 24 hours of admission had a lower suicide risk. Suicide prevention strategies need to be improved, as only one fifth of the facilities in the 2009 OJJDP report had the seven key components

THE

ISSUES

needed for suicide prevention in juvenile facilities (Hayes, 2009). Psychotropic Medications There are no national data on the use of psychotropic medications in the juvenile justice system, but data from two studies conducted in Pennsylvania and Oregon found that almost one half of youth in detention facilities and over two thirds in longer term facilities receive psychotropic medication as part of their mental health treatment plan. Although ideal treatment plans for mental health issues may include psychotropic medications, the length of stay, attitudes of the parent and adolescent, and resources for continuity of care need to be considered in prescribing these medications (Desai et al., 2006). The challenges of mental health screening, assessment, and continuity of care illustrate the complexity of designing and implementing effective treatment for youth in the juvenile justice system. Health-Care Standards Challenges exist in the provision of quality health care to youth in correctional facilities. The NCCHC has published standards for health services for youth in correctional facilities (NCCHC, 2004). However, data analyzed by Gallagher and Dobrin from the Juvenile Residential Facilities Census (2000, 2004; see Gallagher & Dobrin, 2007) and Census of Juveniles in Residential Placement (2003; see Gallagher & Dobrin, 2007) found that the overwhelming majority of facilities were not accredited by NCCHC and that there were significant deficits found when comparing reported practices to NCCHC standards (Gallagher & Dobrin, 2007). In addition, there are challenges related to the continuity of care between community health-care providers and health-care providers in the correctional

The Health of Youth in the Juvenile Justice System

system (Feinstein et al., 1998; Morris, 2001). In part, continuity is made more difficult by the prohibition on utilizing federal money (i.e., Medicaid benefits) to treat youth while they are incarcerated as well as, in many cases, termination rather than suspension of benefits resulting in a delay in reinstatement once the youth is released back into the community (Gupta, Kelleher, Pajer, Stevens, & Cuellar, 2005; Perez, Ro, & Treadwell, 2009).

FACTORS RELATING TO DELINQUENCY AND HEALTH STATUS We have just reviewed the literature on the physical and mental health status and treatment findings for youth in the juvenile justice system. Overall, the research shows that in most domains of physical and mental health, these youth fare worse than their counterparts outside of the juvenile justice system. The following section begins to explain why that is, and suggests responses, by reviewing the literature on factors associated with both delinquency and poor health status. These factors range from the biologic to the cultural and cover the ecological domains of individual, family, community, and social institutions. As these interrelated factors compound, the likelihood of delinquency may increase along with the risk of poor health and reduced access to health care. Thus, understanding them is essential to preventing delinquency and improving youth health. Socioeconomic Status Nearly 13 million children live in poverty (National Center for Children in Poverty, 2009), and socioeconomic status affects both health status and self-reported delinquency.

55

Emerson points out that relative child poverty appears to be associated with health status, particularly in the macroeconomic aspect of the health of nations (2009). Child poverty is associated with unintentional injuries, juvenile homicide, low educational achievement, dropping out of school, poor peer relationships, feeling lonely, and mental health problems (Pickett & Wilkinson, 2007), all of which also tend to be found in delinquent youth as documented in the SYRP data (Sedlak & McPherson, 2010). Poverty is related to mortality risk, with the highest risk for 18- to 27-year-olds whose income is below the median of $20,190 (Rehkopf, Berkman, Coull, & Krieger, 2008). Adverse childhood experiences, such as frequent moves often associated with unstable socioeconomic circumstances, appear to be related to various health risks such as smoking and suicide (Dong et al., 2005). Economically disadvantaged communities with neighborhood violence and deviant peer groups may put middle childhood youth at particular vulnerability for antisocial behavior (Ingoldsby & Shaw, 2002; Seidman et al., 1998). Girls who live in poverty-stricken neighborhoods and who are victims of violence themselves are 2.2 times more likely to have behaved violently in the past year compared to girls who were not victimized. Girls from neighborhoods with poverty and homicides have higher rates of aggression (Molnar, Browne, Cerda, & Buka, 2005). Poverty is related to race and ethnicity in these findings; in 2007, Black and Hispanic juveniles were 3 times as likely to live in poverty as nonHispanic White youth (OJJDP, 2007). More generally, Leventhal and BrooksGunn reported the results of a comprehensive review of research on the effects of neighborhood residence on child and adolescent wellbeing. High socioeconomic status (SES) led to

56

FRAMING

positive life achievement, while low SES and residential instability was related to poor behavioral/emotional outcomes (e.g., increased delinquency and problem behaviors in adolescents) (Leventhal & Brooks-Gunn, 2000). Sampson (2003) elaborated on social characteristics of communities and neighborhoods as they affect health disparities in the inner city. Both articles point to a need to understand the functions of communities in order to improve the health of their citizens. This is particularly evident in a British study of 5- to 10-year-olds in deprived neighborhoods who displayed higher levels of antisocial behavior at school entry and less improvement in antisocial behavior between ages 5 and 10. That behavioral finding was offset by neighborhood collective efficacy but only in deprived neighborhoods, leading the authors to suggest that neighborhood efficacy had a protective effect in young children (Odgers et al., 2009; see Hawkins, Vashchenko, & Davis, Chapter 12, this volume). Race and Culture Minority youth are disproportionately present both in the delinquency system and in the population of youth with reduced access to health care and poor health. Although there is a range of explanations offered, youth of color are represented among arrests and delinquency placements disproportionate to their presence in the population, and this disparity permeates the juvenile custody system including longterm facilities (see Bell & Mariscal, Chapter 6, this volume). This disparity remained stable over the last decade, with a slight decrease of the minority population in custody from 62% in 1997 to 61% in 2003 (Snyder, 2008; Snyder & Sickmund, 2006) and an increase in 2006 to 66% (OJJDP, 2007). Except for Vermont, Black youth’s custody rates in 2003

THE

ISSUES

exceeded rates for White youth across the states (Snyder & Sickmund, 2006). Black youth accounted for 38% of all youth in custody in 2003 (Snyder & Sickmund, 2006) and 41% of all males in custody in 2006 (OJJDP, 2007). Asian youth are an exception. In 1997, they comprised 4% of the juvenile population but only 2% of youth in secure detention (Hsia, Bridges, & McHale, 2004), and in 2006, they comprised 5% of the population but only 1% of youth in secure placement. Similarly, numerous studies report that racial and ethnic minorities have poor health and health care overall. For example, Shi and Macinko (2008) examined changes in medical care experiences between 1996 and 2002 for various racial groups and found that, although there were some fluctuations, racial minorities reported difficulties accessing care, worse health care, and worse health indicators that further declined in 2002. Flores and TomanyKorman (2008a) found similar results, as did Simpson and colleagues (2005) reviewing 2000–2002 data. The REACH 2010 Risk Factor Survey conducted in 21 minority communities showed that racial minorities had substantially greater socioeconomic risk factors and health burden than the general U.S. population, with type and degree varying somewhat among communities (Liao, Tucker, & Giles, 2004). The RAND Corporation in 2004 reported a wide range of socioeconomic, health, safety, and educational disparities faced by boys and men of color in California, all of which could increase the risk of offending and problems accessing health care. These included higher poverty rates of 27% as compared with 19% in the general population, higher HIV/AIDS rates than White peers (6.9 times higher for African Americans and 3.1 times higher for Latinos) and a higher likelihood of being imprisoned. Educational

The Health of Youth in the Juvenile Justice System

gaps compared to White youth, as evidenced by a lack of a high school diploma, are twice as high for African American youth and 7 times as high for Latinos (Davis, Kilburn, & Schultz, 2009). Likewise, substantial health disparities are found in Native American/Alaska Native youth compared to the general population (Castor et al., 2006). In a report on adolescent health and youth of color, the National Association of Social Workers pointed out that Native American youth have the worst health of any racial group and highest rate of violent death compared to “any other racial or ethnic group” (Clark, 2001). Ethnic minority youth also report less regular participation in physical exercise. A review of the scientific literature by Elster, Jarosik, VanGeest, and Fleming (2003) compared 31 studies addressing adolescent racial and ethnic disparities in health care, concluding that racial and ethnic disparities, independent of socioeconomic status, exist in selected areas of adolescent health care (Elster et al.). Similar disparities for oral health are found among racial/ethnic minorities (Dietrich, Culler, Garcia, & Henshaw, 2008). Flores and Tomany-Korman (2008b) observed that children in non-English-speaking homes experienced multiple disparities in medical and oral health, access to care, and use of services, adding another factor that relates to the racial disadvantage in health care. Engagement in psychiatric care in particular is an issue that may not just be related to access (see Oliveri, Towery, Jacobs & Jacobs, Chapter 18, this volume). Many Americans are reluctant to take psychiatric medications even though they are effective, and their reluctance may have cultural roots. Croghan’s study found that the majority of respondents would not take psychiatric medications (Croghan et al., 2003). This finding may help explain some of the factors related to whether

57

detained youth continue on psychiatric medications when they are released. There are ethnic differences in perspectives toward depression in that African American and Latino youth and their parents have less knowledge about antidepressants and are less willing to seek treatment (Chandra et al., 2009). Thus, these negative factors are not confined solely to delinquent youth, but rather result in poor mental health outcomes in the communities from which delinquents come. Family Structure, Abuse/Neglect, and the Foster Care System Family dysfunction, and specifically abuse and neglect, can lead to involvement in the foster care system. Youth in foster care (a number of whom will transition to the juvenile justice system) suffer poor health, and have chronic medical conditions, mental disorders, and substance abuse problems (Currie & Tekin, 2006; see Baker, Cunningham & Harris, Chapter 11, this volume). In general, suffering greater levels of abuse leads to a greater likelihood of engaging in delinquency (Grogan-Kaylor, Ruffolo, Ortega, & Clarke, 2008; Malmgren & Meisel, 2004; Stewart, Livingston, & Dennison, 2008). However, the contribution of foster care alone as a cause of delinquency and poor health cannot be separated from the various types of severity and duration of abuse that lead to foster care placement. An additional confounding element is the appropriate disposition of foster children who may commit minor offenses such as hitting a staff member or fighting in a group home. There is the tendency to send these children to the juvenile justice system with no right of return to the child welfare system. Ross, Conger, and Armstrong (2002) discuss this effect and suggest the need for a “human services” model with the “objective of

58

FRAMING

achieving real working partnerships at the front line (see Ross & Miller, Chapter 17, this volume). There is also a link between poverty (Farrington, 1989; Kirk, 2008), family disruption (Kirk, 2008; Sampson & Laub, 1994) and self-reported delinquency. Family disruption influences juvenile violence, leading to three interconnected states—poverty, family disruption, and violent delinquency (Sampson & Laub, 1994). Children from two-parent families are less likely to live in poverty than children from single-parent families, 8% vs. 17%. Single-mother households have much higher rates of receiving public assistance (62%) and food stamps (61%) compared to two-parent families, 32% and 23%, respectively (OJJDP, 2007). Youth living with both biologic parents are less likely to engage in problem behaviors and crime regardless of whether the neighborhood is well or poorly kept. In fact, family structure predicts problem behaviors more than does race or ethnicity (Snyder & Sickmund, 2006). However, neighborhood characteristics, including social networks and Hispanic ethnicity, may influence parent-tochild aggression, with physical aggression leading to more severe child maltreatment (Molnar, Buka, Brennan, Holton, & Earls, 2003). Hispanic and African American youth are more likely to live in single-parent households (Snyder & Sickmund, 2006). In 2007, 57% of Black youth lived with one parent, compared to 31% of Hispanic children and 23% of White children (OJJDP, 2007). Characteristics of parental supervision can help reduce delinquency so that a high level of parental supervision is associated with low delinquency (Fischer, 1983). Positive family communication (i.e., open vs. closed communication) with a youth’s parents also helps deter delinquency (Clark & Shields, 1997). Parents

THE

ISSUES

of delinquent youth tend to lose control of their children, as evidenced by their inability to turn their children away from maladaptive behaviors and toward prosocial activities. This, in turn, can interfere with the parents’ effectiveness in obtaining services for their children because of parental feelings of helplessness and inability to engage their children in agreeing to attend services. The Smith Sterns (1999) suggest that new approaches are necessary to empower parents and enhance cooperation between parents and social service agencies. The pathway from foster care to the delinquency system is more pronounced among youth of color. Youth of color make up the majority of foster youth (Clark, 2001). NonWhite children, given in-home abuse avoidance services as opposed to no services, had a lower risk of juvenile corrections entry. However, youth receiving mental health services had a high risk of entering the juvenile correctional system (Jonson-Reid, 2002). The same author reporting on children receiving child welfare services in California reported similar outcomes for non-White children. However, girls who experienced foster placement or group home placement had higher rates of involvement with the juvenile corrections system than girls not placed out of home (see, e.g., Sherman & Greenstone, Chapter 7, this volume). Further, children who were reported as neglected were more likely to be incarcerated compared to those who were reported as being physically or sexually abused. The authors felt that children receiving no services were at greatest risk for incarceration (Jonson-Reid & Barth, 2000). Education Educational failure leads to unemployment and possibly criminal behavior. Again, these factors are interrelated, with poor education

The Health of Youth in the Juvenile Justice System

leading to low SES, which is related to both poor health and health access and to involvement in the delinquency system. Hispanic and African American youth drop out of school more often compared to White youth. In 2005, 2.8% of White, 7.3% of Black, and 5% of Hispanic youth dropped out of school (OJJDP, 2007). Youth who neither attend school nor work have an increased risk of engaging in high-risk and delinquent behaviors (Snyder & Sickmund, 2006). Lowincome families, defined as those in the bottom fifth income bracket, also have higher dropout rates with 8.9% of low-income youth dropping out compared to 1.5% of high-income families who are in the top fifth income bracket (OJJDP, 2007). Biologic Factors Intrinsic factors, such as genetic variations, appear to contribute to behavioral traits leading to delinquent acts, and recent research shows that the origins of adult illness and behavioral abnormalities may be biologic (Shonkoff, Boyce, & McEwen, 2009). Youth who carry the short allele form of the serotonin transporter–linked polymorphic region (5-HTTLPR) gene that is found in 40% of the general population are prone to impulsivity, low self-control, binge drinking, and substance use (Brody et al., 2009). Other genetic variations involving monoamine oxidase A (Passamonti et al., 2006) and serotonin (Lesch & Merschdorf, 2000) influence impulsive, aggressive behaviors. Serotonin transporter– promoting gene polymorphism is associated with violence in relation to personality disorders, impulsiveness, and childhood attentiondeficit/hyperactivity disorder (ADHD) (Retz, Retz-Junginger, Supprian, Thome & Rosler, 2004). The combination of violent behavior, impulsiveness, and ADHD also may be related

59

to dopamine D3 receptor gene polymorphism (Retz, Rosler, Supprian, Retz-Junginger & Thome, 2003). There are a number of other genes that may be involved in antisocial behavior combined with ADHD (Langley, 2009) and ADHD and impulsivity (Ribases et al., 2008). Finally, there appears to be a subset of children with ADHD and antisocial behavior associated with variations in the catechol-Omethyltransferase (COMT) gene (Caspi et al., 2008). Although these genetic variations account for a small number of incarcerated youth, further research is likely to discover more of these inborn tendencies to engage in delinquent behavior. Some of these antisocial behaviors that are genetically related may be modified by prevention programs that can override the genetic predisposition (Brody et al., 2009). Magnetic resonance imaging (MRI) provides another tool to evaluate maturation and disruption in brain function in normal adolescence and pathologic states. Giedd and his colleagues followed brain architecture during childhood into early adulthood and found that the brain continues to change through the early 20s. The frontal lobes, where executive functioning resides, is one of the last areas to mature (Rhoghel & Giedd, 2006). These authors point out that changes in the brain’s structure and the size of various areas of the brain correspond to enhanced strengths or weaknesses in brain function such as memory capacity. They also note that brain maturation includes interactions between genetic, epigenetic, and environmental factors. They define environmental factors as both outside environment and internal “physiologic milieu.” Thus, individuals who are stressed beyond their capacity to cope will develop “compensatory physiologic responses and behaviors that in time may affect brain structures” (p. 726). This can be part of a normal or abnormal learning process.

60

FRAMING

Preliminary MRI studies of youth with developmental disorders show consistent changes in brain structure compared to controls, although the physiologic meaning of these changes is not well understood. Childhood-onset schizophrenia, Williams syndrome, ADHD, and fetal alcohol syndrome all demonstrate abnormal brain morphology with some areas of decreased size. Although the abnormalities vary in these disorders, there also are some similarities among them (Toga, Thompson, & Sowell, 2006). Although not directly related to these neuroimaging studies, many authors have measured various aspects of adolescent decision-making processes compared with that of adults. When engaged with peers, adolescents are more likely than adults to make decisions associated with increased risk. This scenario, which is called “hot cognition,” is compared to “cold cognition” when decisions are made in controlled or nonemotional circumstances (Gardner & Steinberg, 2005). Modecki (2007) reviewed the gaps in the maturity of judgment literature and found that adolescents “display less responsibility and perspective relative to college students” (p. 89). There was no difference between nondelinquent youth and delinquent youth with regard to maturity of judgment, but high-level-delinquency youth have significantly lower maturity of judgment compared to low-level-delinquency youth (Modecki, 2007). Recent work utilizing functional MRI studies of normal adolescents 11–13 years old find that sleep deprivation may be related to compensatory increases in reward-driven behavior, possibly increasing risky behavior because of less activation of the caudate (part of the ventral striatum) that is related to reward-related brain function (Holm et al., 2009). Thus, there may be an interaction between brain

THE

ISSUES

maturation and sleep deprivation, which is often found in adolescents engaged in delinquent behavior at night. A recent review of childhood roots of health disparities amplifies the effects of poor environment on young children, bringing our understanding to a new theoretical plane. The authors argue that the origins of adult illness and behavioral abnormalities result from biological disruptions caused by toxic stress beginning prenatally and continuing through childhood. Unless there are protective relationships to buffer the effects of stress, the individual develops maladaptive coping mechanisms that are reinforced by permanent changes in the brain and other organs. They further point out that protective and stressful events affecting one generation can have positive or negative effects for several successive generations that are facilitated by epigenetic changes in DNA methylation and histamine modification of chromatin in response to experiences that can influence the next generation (Shonkoff et al., 2009). Although not part of their argument, there is the possibility of a multiplying effect in that parents who have experienced severe childhood trauma will pass on a genetic predisposition for poor adaptation to stress and compound the effect by lacking the ability themselves as parents to provide supportive relationships to their children. These children are likely to experience substantial, perhaps “toxic stress” because they remain embedded in the poor social climate of their parents. At the extreme, the children experience child abuse, chronic neglect, emotional abuse, extreme poverty, family violence, and parental drug abuse (Shonkoff et al., 2009). Shonkoff and colleagues (2009) also point out the long-term effects of this stress on personal well-being, including heart disease; high blood pressure; obesity; early aging; pulmonary disease; depression; alcoholism; teen pregnancy; smoking; anxiety; aggression;

The Health of Youth in the Juvenile Justice System

and poor mental flexibility, memory, and other cognitive processes. These observations lead to an understanding that the poor health and health disparities of many disadvantaged social groups have an early biologic basis that becomes evident as the person ages and illuminates the link between health disparities and delinquency. They make a strong case for early childhood interventions to reduce the risks of both physical and mental health impairments. They also point out that once these early processes take effect, it is very difficult to reverse the early biological damage. A related article reinforces these concepts and makes clear the difficulty in changing behavior in delinquent youth. Abram, Choe, Washburn, Romero, and Teplin (2009) followed 1,653 youth for about three years after detention and found significant functional impairment across one or more of the eight domains. One fifth (21.6%) of youth had marked global impairment. Only 7.5% had “no noteworthy impairment.” It would be expected that those youth who had substantial functional impairments would also have problems accessing health care after being released from detention. These data also reinforce the difficulties of changing behavior and functioning that may have roots in early childhood toxic experiences. Poor compliance with health care may also be related to the normal developmental course of brain maturation discussed in the MRI studies above. The associated lag in appropriate and non-risk-taking decision making could play a role in some youth not seeking health care or not cooperating with health-care recommendations. This may be compounded by poor parental supervision or disordered communities, and these immaturity dynamics could play a significant role in impeding the seeking of health care because there is no outside control on the youth’s behavior.

61

CONCLUSION While additional national research is needed, existing literature confirms the sense in the field that youth in the juvenile justice system fare worse than their counterparts in the general population in most domains of physical and mental health. This is explained in part by the compelling confluence of demographic, family, and youth traits related to both the onset of delinquent behaviors and disparities in health care. Youth from lower socioeconomic strata, minority race and ethnicity, and disorganized families, including abused youth, are more likely to be involved in delinquency, and the same elements impede health care. Currently, it is not known if delinquent youth receive worse health care than nondelinquent youth of similar backgrounds. It may be that both groups suffer equally because of their social status. However, nondelinquent youth may have more supportive functional family structures that help ameliorate the risk of poor health care. At the time youth are incarcerated, there is a window of opportunity to address their existing health problems. However, although the health needs of these youth become evident and need to be addressed when they become involved in the juvenile justice system, primary prevention efforts, which address disparate socioeconomic and personal health risk factors before youth are involved in the justice system, may be most effective and most likely will require multiple approaches. Thus, it is important to view the causes and remediation of poor health care in detained and incarcerated youth from the broader perspective of their social, economic, and demographic origins. Efforts to improve the health status of this underserved population may also reduce the incidence of delinquency because the etiology of both is similar. Universal health

62

FRAMING

care and culturally sensitive care will address some of the underlying health disparities found in economically disadvantaged and/or ethnic neighborhoods. REFERENCES Abram, K. M., Choe, J. Y., Washburn, J. J., Romero, E. G., & Teplin, L. A. (2009). Functional impairment in youth three years after detention. Journal of Adolescent Health, 44, 528–535. Abram, K. M., Teplin, L. A., McClelland, G. M., & Dulcan, M. K. (2003). Comorbid psychiatric disorders in youth in juvenile detention. Archives of General Psychiatry, 60, 1097–1108. Abram, K. M., Teplin L. A., Charles, D. R., Longworth M. S., McClelland, G. M., & Dulcan, M. K. (2004). Posttraumatic stress disorder and trauma in youth in juvenile detention. Archives of General Psychiatry, 61, 403–410. Atkins, D. L., Pumariega, A. J., Rogers, K., Montgomery, L., Nybro, C., Jeffers, G., & Sease, F. (1999). Mental health and incarcerated youth. I: Prevalence and nature of psychopathology. Journal of Child and Family Studies, 8, 193–204. Boesky, L. M. (2002). Juvenile offenders with mental health disorders. Lanham, MD: American Correctional Association. Bolin K., & Jones, D. (2006). Oral health needs of adolescents in a juvenile detention facility. Journal of Adolescent Health, 38, 755–757. Brody, G. H., Beach, S. R, Philibert, R. A., Chen, Y. F., & Murry, V. M. (2009). Prevention effects moderate the association of 5-HTTLPR and youth risk behavior initiation: Gene x environment hypotheses tested via a randomized prevention design. Child Development, 80, 645–661. Breuner, C. C., & Farrow, J. A. (1995). Pregnant teens in prison: Prevalence, management, and consequences. Western Journal of Medicine, 162, 328– 330. Carrion, V. G., & Steiner, H. (2000) Trauma and dissociation in delinquent adolescents. Journal of the American Academy of Child and Adolescent Psychiatry, 39, 353–359. Caspi, A., Langley, K., Milne, B., Moffitt, T. E., O’Donovan, M., Owen, M. J., . . . Thapar, A. (2008). A replicated molecular genetic basis for

THE

ISSUES

subtyping antisocial behavior in children with attention-deficit/hyperactivity disorder. Archives of General Psychiatry, 65, 203–210. Castor, M. L., Smyser, M. S., Taualii, M. M., Park, A. N., Lawson, S. A., & Forquera, R. A. (2006). A nationwide population-based study identifying health disparities between American Indians/ Alaska Natives and the general populations living in select urban counties. American Journal of Public Health, 96, 1478–1484. Cauffman E., Feldman, S. S., Waterman, J., & Steiner, H. (1998) Posttraumatic stress disorder among female juvenile offenders. Journal of the American Academy of Child and Adolescent Psychiatry, 37, 1209–1216. Centers for Disease Control and Prevention. (2010). Sexually transmitted disease surveillance 2009. U.S. Department of Health and Human Services. Retrieved from www.cdc.gov/std/stats09/toc.htm Centers for Disease Control and Prevention. (2008a). Sexually transmitted disease surveillance 2007. U.S. Department of Health and Human Services. Retrieved from www.cdc.gov/std/stats07/main .htm Centers for DiseaseControland Prevention.(2008b).CDC HIV/AIDS Fact Sheet. HIV/AIDS among youth. Retrieved from www.cdc.gov/hiv/resources /factsheets/PDF/youth.pdf. Chandra, A., Scott, J. J., Jaycox, L. H., Meredith, L. S., Tanielian, T., & Burnam, A. (2009). Racial/ethnic differences in teen and parent perspectives toward depression treatment. Journal of Adolescent Health, 44, 546–553. Clark, R. D., & Shields, G. (1997). Family communication and delinquency. Adolescence, 32, 81–92. Clark, S. (2001). Adolescent health and youths of color. Adolescent Health, Vol. 2. Retrieved from National Association of Social Workers Web site: www.socialworkers.org Council on Scientific Affairs. (1990). Health status of detained and incarcerated youths. Journal of the American Medical Association, 263, 987–991. Croghan, T. W., Tomlin, M., Pescosolido, B. A., Schnittker, J., Martin, J., Lubell, K., & Swindle, R. (2003). American attitudes toward and willingness to use psychiatric medications. Journal of Nervous and Mental Disease, 191, 166–174. Currie, J., & Tekin, E. (2006). Does child abuse cause crime? Working Paper 06–31. Andrew Young School of Policy Studies, Georgia State University.

The Health of Youth in the Juvenile Justice System Davis, L. M., Kilburn, R. M., & Schultz, D. (2009). The socioeconomic, health, safety and educational disparities faced by boys and men of color in California. RAND Health Monograph #MG-745-TCE. Santa Monica, CA: RAND Corporation. Desai, R. A., Goulet, J. L., Robbins, J., Chapman, J. F., Migdole, S. J., & Hoge, M. A. (2006). Mental health care in juvenile detention facilities: A review. Journal of the American Academy of Psychiatry and the Law, 34, 204–214. Dietrich, T., Culler, C., Garcia, R. I., & Henshaw, M. M. (2008). Racial and ethnic disparities in children’s oral health. The National Survey of Children’s Health. Journal of the American Dental Association, 139, 1507–1517. Dixon, A., Howie, P., & Starling, J. (2004). Psychopathology in female juvenile offenders. Journal of Child Psychology and Psychiatry and Allied Disciplines, 45, 1150–1158. Domalanta, D. D., Risser, W. L., Roberts, R. E., & Risser, J. M. (2003). Prevalence of depression and other psychiatric disorders among incarcerated youths. Journal of the American Academy of Child and Adolescent Psychiatry, 42, 477–484. Dong, M., Anda, R. F., Felitti, V. J., Williamson, D. F., Dube, S. R., Brown, D. W., & Giles, W. H. (2005). Childhood residential mobility and multiple health risks during adolescence and adulthood: The hidden role of adverse childhood experiences. Archives of Pediatric and Adolescent Medicine, 159, 1104–1110. Elkington K. S., Teplin L. A., Mericle A. A., Welty L. J., Romero E. G., & Abram K. M. (2008). HIV/ sexually transmitted infection risk behaviors in delinquent youth with psychiatric disorders: A longitudinal study. Journal of the American Academy of Child and Adolescent Psychiatry, 47, 901–911. Elster, A., Jarosik, J., VanGeest, J., & Fleming, M. (2003). Racial and ethnic disparities in health care for adolescents: A systematic review of the literature. Archives of Pediatric and Adolescent Medicine, 157, 867–874. Emerson, D. (2009). Relative child poverty, income inequality, wealth and health. JAMA, 301, 425–426. Farrington, D. P. (1989). Early predictors of adolescent aggression and adult violence. Violence and Victims, 4, 79–100. Fazel, S., Doll, H., & Langstrom N. (2008). Mental disorders among adolescents in juvenile detention and correctional facilities: A systematic review and

63

metaregression analysis of 25 surveys. Journal of the American Academy of Child and Adolescent Psychiatry, 47, 1010–1019. Feinstein R. A., Lampkin, A., Lorish C. D., Klerman, L. V., Maisiak, R., & Oh, M. K. (1998). Medical status of adolescents at time of admission to a juvenile detention center. Journal of Adolescent Health, 22, 190–196. Fischer, D. G. (1983). Parental supervision and delinquency. Perceptual and Motor Skills, 56, 635–640. Flores, G., & Tomany-Korman, S. C. (2008a). Racial and ethnic disparities in medical and dental health, access to care, and use of services in US children. Pediatrics, 121, e286–e298. Flores, G., & Tomany-Korman, S. C. (2008b). The language spoken at home and disparities in medical and dental health, access to care, and use of services in US children. Pediatrics, 121, e1703– e1714. Ford, J. D., Chapman, J. F., Hawke, J., & Albert, D. (2007). Trauma among youth in the juvenile justice system: Critical issues and new directions. Research and Program Brief. Retrieved from National Center for Mental Health and Juvenile Justice Web site: www .ncmhjj.com Forrest, C. B., Tambor, E., Riley A. W., Ensminger, M. E., & Starfield, B. (2000). The health profile of incarcerated male youths. Pediatrics, 105, 286–291. Gallagher, C. A., & Dobrin, A. (2006a) Deaths in juvenile justice residential facilities. Journal of Adolescent Health, 38, 662–668. Gallagher, C.A., & Dobrin, A. (2006b). Facility-level characteristics associated with serious suicide attempts and deaths from suicide in juvenile justice residential facilities. Suicide and Life-Threatening Behavior, 36, 363–375. Gallagher, C. A., & Dobrin, A. (2007). Can juvenile justice detention facilities meet the call of the American Academy of Pediatrics and the National Commission on Correctional Health Care? A national analysis of current practices. Pediatrics, 199, e991–e1001. Gallagher, C. A., Dobrin, A., & Douds, A.S. (2007). A national overview of reproductive health care services for girls in juvenile justice residential facilities. Women’s Health Issues, 17, 217–226. Gardner, M., & Steinberg, L. (2005). Peer influence on risk taking, risk preference, and risky decision making in adolescence and adulthood: An

64

FRAMING

experimental study. Developmental Psychology, 41, 625–635. Golzari, M., Hunt, S. J., & Anoshiravani, A. (2006). The health status of youth in juvenile detention facilities. Journal of Adolescent Health, 38, 776–782. Grogan-Kaylor, A., Ruffolo, M. C., Ortega, R. M., & Clarke, J. (2008). Behaviors of youth involved in the child welfare system. Child Abuse and Neglect, 32, 35–49. Gupta, R. A., Kelleher, K. J, Pajer, K., Stevens, J., & Cuellar, A. (2005). Delinquent youth in corrections: Medicaid and reentry into the community. Pediatrics, 115, 1077–1083. Hayes, L. M. (2009). Juvenile suicide in confinement: A national survey. OJJDP, U.S. Department of Justice Office of Justice Programs. Retrieved from www .ojjdp.ncjrs.org Harwell, T. S., Trino, R., Rudy, B., Yorkman, S., & Gollub, E. L. (1999). Sexual activity, substance use, and HIV/STD knowledge among detained male adolescents with multiple versus first admissions. Sexually Transmitted Diseases, 26, 265–271. Hein, K., Cohen, M. I., Litt, I. F., Schonberg, S. K., Meyer, M. R., Marks, A., & Sheehy, A. J. (1980). Juvenile detention: Another boundary issue for physicians. Pediatrics, 66, 239–245. Holm, S. M., Forbes, E. E., Ryan, N. D., Phillips, M. L., Tarr, J. A., & Dahl, R. E. (2009). Reward-related brain function and sleep in pre/early pubertal and mid/late pubertal adolescents. Journal of Adolescent Medicine, 45, 326–334. Hsia, H. M., Bridges, G. S., & McHale, R. (2004). Disproportionate minority confinement. 2002 update (NCJ 201240). Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Hufft, A. G. (2004). Supporting psychosocial adaptation for the pregnant adolescent in corrections. American Journal of Maternal Child Nursing, 29, 122–127. Ingoldsby, E. M., & Shaw, D. S. (2002). Neighborhood contextual factors and early-starting antisocial pathways. Clinical Child and Family Psychology Review, 5, 21–55. Jonson-Reid, M. (2002). Exploring the relationship between child welfare intervention and juvenile corrections involvement. American Journal of Orthopsychiatry, 72, 559–576. Jonson-Reid, M., & Barth, R. P. (2000). From maltreatment report to juvenile incarceration: The role

THE

ISSUES

of child welfare services. Child Abuse and Neglect, 24, 505–520. Kim, A. A., McFarland, W., Kellogg, T., & Katz, M. H. (1999). Sentinel surveillance for HIV infection and risk behavior among adolescents entering juvenile detention in San Francisco: 1990–1995. AIDS, 13, 1597–1598. Kirk, D. S. (2008). The neighborhood context of racial and ethnic disparities in arrest. Demography, 45, 55–77. Ko, S. J., Wasserman, G. A., McReynolds, L. S., & Katz, L. M. (2004). Contribution of parent report to Voice DISC-IV diagnosis among incarcerated youths. Journal of the American Academy of Child and Adolescent Psychiatry, 43, 868–877. Kramer, T. L., Phillips, S. D., Hargis, M. B., Miller, T. L., Burns, B. J., & Robbins, J. M. (2004). Disagreement between parent and adolescent reports of functional impairment. Journal of Child Psychology and Psychiatry, 45, 248–259. Langley, K., Fowler, T. A., Grady, D. L., Moyzis, R. K., Holmans, P. A., van den Bree, M. B., . . . Thapar, A. (2009). Molecular genetic contribution to the developmental course of attention-deficit hyperactivity disorder. European Child Adolescent Psychiatry, 18, 26–32. Lederman, C. S., Dakof, G. A., Larrea, M. A., & Hua, L. (2004). Characteristics of adolescent females in juvenile detention. International Journal of Law and Psychiatry, 27, 321–337. Lesch, K. P., & Merschdorf, U. (2000). Impulsivity, aggression, and serotonin: A molecular psychobiological perspective. Behavioral Sciences and the Law, 18, 581–604. Leventhal, T., & Brooks-Gunn, J. (2000). The neighborhoods they live in: The effects of neighborhood residence on child and adolescent outcomes. Psychological Bulletin, 126, 309–337. Liao, Y., Tucker, P., & Giles, W. H. (2004). Health status among REACH 2010 communities, 2001–2002. Ethnicity and Disease, 13, S9–S13. Litt, I. R., & Cohen, M. I. (1974). Prisons, adolescents, and the right to quality medical care: The time is now. American Journal of Public Health, 64, 894–897. Malmgren, K. W., & Meisel, S. M. (2004). Examining the link between child maltreatment and delinquency for youth with emotional and behavioral disorders. Child Welfare, 83, 175–188. Martin, A. (2006). Busted! Child and Adolescent Psychiatry Clinics of North America, 15, xv–xvii.

The Health of Youth in the Juvenile Justice System

Mason, W. A., Zimmerman, L., & Evans, W. (1998). Sexual and physical abuse among incarcerated youth: Implications for sexual behavior, contraceptive use, and teenage pregnancy. Child Abuse & Neglect, 22, 987–995. McCabe, K. M., Lansing, A. E., Garland, A., & Hough R. (2002). Gender differences in psychopathology, functional impairment, and familial risk factors among adjudicated delinquents. Journal of the American Academy of Child and Adolescent Psychiatry, 41, 860–867. McClelland, G. M., Elkington, K. S., Telpin, L. A., & Abram, K. M. (2004). Multiple substance use disorders in juvenile detainees. Journal of the American Academy of Child and Adolescent Psychiatry, 43, 1215–1224. Mertz, K. J., Voigt, R. A., Hutchins, K., Levine, W. C., & Jail STD Prevalence Monitoring Group. (2002). Findings from STD screening of adolescents and adults entering correctional facilities. Implications for STD control strategies. Sexually Transmitted Diseases, 29, 834–839. Modecki, K. L. (2007). Addressing gaps in the maturity of judgment literature: Age differences and delinquency. Law and Human Behavior, 21, 78–91. Moffitt, T. E. (1993). Adolesence-limited and life-coursepersistent antisocial behavior: A developmental taxonomy. Psychological Review, 100, 674–701. Molnar, B.E., Browne, A., Cerda, M., & Buka, S. L. (2005). Violent behavior by girls reporting violent victimization: A prospective study. Archives of Pediatric and Adolescent Medicine, 159, 731–739. Molnar, B. E., Buka, S. L., Brennan, R. T., Holton, J. K., & Earls, F. (2003). A multilevel study of neighborhoods and parent-to-child physical aggression: Results from the project on human development in Chicago neighborhoods. Child Maltreatment, 8, 84–97. Morris, R. E. (2001). The health of youth in the juvenile justice systems. Adolescent Medicine: State of the Art Reviews, 1, 471–483. Morris, R. E., Harrison, E. A., Knox, G. W., Tromanhauser, E., Marquis, D. K., & Watts, L. L. (1995). Health risk behavioral survey from 39 juvenile correctional facilities in the United States. Journal of Adolescent Health, 17, 334–344. Morris, R. E., Baker, C. J., Valentine, M., & Pennisi, A. J. (1998). Variations in HIV risk behaviors of incarcerated juveniles during a four-year period: 1989–1992. Journal of Adolescent Health, 23, 39–48.

65

National Center for Children in Poverty. (2009). Who are America’s poor children? Retrieved from www.nccp .org/publications/pub_787.html National Commission on Correctional Health Care. (2004). Standards for health services in juvenile detention and confinement facilities. Chicago, IL: NCCHC. Nesmith, J. D., Klerman, L. V., Oh, K., & Feinstein, R. A. (1997). Procreative experiences and orientations toward paternity held by incarcerated adolescent males. Journal of Adolecent Health, 20, 198–203. Odgers, C. L., Moffitt, T. E., Tach, L. M., Sampson, A., Taylor, R. J., Matthews, C. L., & Caspi, A. (2009). The protective effects of neighborhood collective efficacy on British children growing up in deprivation: A developmental analysis. Developmental Psychology, 45, 942–957. Oh, M. K., Cloud, G. A., Wallace, L. S., Reynolds, J., Sturdevant, M., & Feinstein, R. A. (1994). Sexual behavior and sexually transmitted diseases among male adolescents in detention. Sexually Transmitted Diseases, 21, 127–132. OJJDP Statistical Briefing Book. (2007). Online. Retrieved from http://ojjdp.gov/ojstatbb/population /faqs.asp Passamonti, L., Fera, F., Magariello, A., Cerasa, A., Giola, M. C., Muglia, M., . . . Quattrone, A. (2006). Monoamine oxidase-a genetic variations influence brain activity associated with inhibitory control: New insight into the neural correlates of impulsivity. Biologic Psychiatry, 59, 334–340. Perez, L. M., Ro, M. J., & Treadwell, H. M. (2009). Vulnerable population, prison, and federal and state Medicaid policies: Avoiding the loss of a right to care. Journal of Correctional Health Care, 15, 142–149. Pickett, K. E., & Wilkinson, R. G. (2007). Child wellbeing and income inequality in rich societies: Ecological cross sectional study. British Medical Journal, 335, 1054–1055. Rawal, P., Romansky, J., Jenuwine, M., & Lyons, J. S. (2004). Racial differences in mental health needs and service utilization of youth in the juvenile justice system. Journal of Behavioral Health Services Research, 31, 242–254. Rehkopf, D. H., Berkman, L. F., Coull, B., & Krieger, N. (2008). The non-linear risk of mortality by income level in a health population: US National Health and Nutrition Examination Survey mortality follow-up cohort, 1988–2001. BMC Public Health, 8, 383.

66

FRAMING

Retz, W., Retz-Junginger, P., Supprian, T., Thome, J., & Rosler, M. (2004). Association of serotonin transporter promoter gene polymorphism with violence: Relation with personality disorders, impulsivity, and childhood ADHD psychopathology. Behavioral Sciences and the Law, 22, 415–425. Retz, W., Rosler, M., Supprian, T., Retz-Junginger, P., & Thome, J. (2003). Dopamine D3 receptor gene polymorphism and violent behavior: relation to impulsiveness and ADHD-related psychopathology. Journal of Neural Transmission, 110, 561–572. Rhoghel, K. L., & Giedd, J. N. (2006). Brain development in children and adolescents: Insights from anatomical magnetic resonance imaging. Neuroscience and Biobehavioral Reviews, 30, 718–729. Ribases, M., Hervas, A., Ramos-Quiroga, J. A., Bosch, R., Bielsa, A., Gastaminza, X., . . . Bayes, M. (2008). Association study of 10 genes encoding neurotropic factors and their receptors in adult and child attention-deficit/hyperactivity disorder. Biological Psychiatry, 63, 935–945. Roberts, R. E., Attkisson, C. C., & Rosenblatt, A. (1998). Prevalence of psychopathology among children and adolescents. American Journal of Psychiatry, 155, 715–725. Robertson, A. A., Dill, P. L., Husain, J., & Undesser, C. (2004). Prevalence of mental illness and substance abuse disorders among incarcerated juvenile offenders in Mississppi. Child Psychiatry and Human Development, 35, 55–74. Ross, T., Conger, D., & Armstrong, M. (2002). Bridging child welfare and juvenile justice: Preventing unnecessary detention of foster children. Child Welfare, 81, 471–494. Ruchkin, V., Koposov, R., Vermeiren, R., & SchwabStone, M. (2003). Psychopathology and age of onset of conduct problems in juvenile delinquents. Journal of Clinical Psychiatry, 64, 913–920. Sampson, R. J. (2003). The neighborhood context of well-being. Perspectives in Biology and Medicine, 46, S53–S64. Sampson, R. J., & Laub, J. H. (1994). Urban poverty and the family context of delinquency: A new look at structure and process in a classic study. Child Development, 65, 523–540. Sedlak A. J., & Bruce C. (2010). Youth’s characteristics and backgrounds: Findings from the Survey of Youth in Residential Placement. Washington, DC: U.S. Department of Justice, Office of Justice Programs,

THE

ISSUES

Office of Juvenile Justice and Delinquency. www .ncjrs.gov/pdffiles1/ojjdp/227730.pdf Sedlak, A. J., & McPherson, K. S. (2010). Youth’s needs and services: Findings from the Survey of Youth in Residential Placement. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Retrieved from www.ncjrs.gov /pdffiles1/ojjdp/227728 Seidman, E., Yoshikawa, H., Roberts, A., Cesir-Teran, D., Allen, L., Friedman, J. L., & Aber, J. L. (1998). Structural and experiential neighborhood contexts, developmental stage, and antisocial behavior among urban adolescents in poverty. Development and Psychopathology, 10, 259–281. Shelton, D. (2000). Health status of young offenders and their families. Journal of Nursing Scholarship, 32, 173–178. Shelton, D. (2004). Experiences of detained young offenders in need of mental health care. Journal of Nursing Scholarship, 36, 129–133. Shi, J., & Macinko, J. (2008). Changes in medical care experiences of racial and ethnic groups in the United States, 1996–2002. International Journal of Health Services, 38, 653–670. Shonkoff, J. P., Boyce, W. T., & McEwen, B. S. (2009). Neuroscience, molecular biology, and the childhood roots of health disparities. JAMA, 301, 2252–2259. Shufelt, J. L., & Cocozza, J. J. (2006, June). Youth with mental health disorders in the juvenile justice system: Results from the Multi-State Prevalence Study. Research and Program Brief, National Center for Mental Health and Juvenile Justice. Retrieved from www.ncmhjj.com Simpson, L., Owens, P. L., Zodet, M. W., Chevarley, F. M., Doughert, D., Elixhauser, A., & McCormick, M. C. (2005). Health care for children and youth in the United States: Annual report on patterns of coverage, utilization, quality and expenditures by income. Ambulatory Pediatrics, 5, 6–44. Smith Stern, S. B., & Smith Stern, C. A. (1999). Reciprocal relationships between antisocial behavior and parenting: Implications for delinquency intervention. Families in Society, 80, 169–181. Snyder, H. N. (2008, November). Juvenile arrests 2006. Juvenile Justice Bulletin. Washington, DC: US Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

The Health of Youth in the Juvenile Justice System Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 national report. Washington, DC: US Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Steiner, H., Garcia, I. G., & Matthews, Z. (1997). Journal of the American Academy of Child and Adolescent Psychiatry, 36, 357–365. Stewart, A., Livingston, M., & Dennison, S. (2008). Transitions and turning points: Examining the links between child maltreatment and juvenile offending. Child Abuse and Neglect, 32, 51–66. Sweeney, P., Lindegren, M. L., Buehler J. W., Onorato, I. M., & Janssen, R. S. (1995). Teenagers at risk of immunodeficiency virus type 1 infection. Results from seroprevalence surveys in the United States. Archives of Pediatrics and Adolescent Medicine, 149, 521–528. Teplin, L. A., Abram, K. M., McClelland, G. M., Dulcan, M. K., & Mericle, A. A. (2002). Psychiatric disorders in youth in juvenile detention. Archives of General Psychiatry, 59, 1133–1143. Teplin, L. A., Mericle, A. A., McClelland, G. M., & Abram, K. M. (2003). HIV and AIDS risk behaviors in juvenile detainees: Implications for public health policy. American Journal of Public Health, 93, 906–912. Teplin, L. A., Elkington, K. S., McClelland, G. M., Abram, K. M., Mericle, A. A., & Washburn, J. J. (2005). Major mental disorders, substance use disorders, co-morbidity, and HIV-AIDS risk behaviors in juvenile detainees. Psychiatric Services, 56, 823–828. Toga, A. W., Thompson, P. M., & Sowell, E. R. (2006). Mapping brain maturation. Trends in Neuroscience, 29, 148–159.

67

Ulzen, T. P., & Hamilton, H. (1998). The nature and characteristics of psychiatric comorbidity in incarcerated adolescents. Canadian Journal of Psychiatry, 43, 57–63. Vermeiren, R., Jespers, I., & Moffitt, T. (2006) Mental health problems in juvenile justice populations. Child and Adolescent Psychiatry Clinics of North America, 15, 333–351. Vreugdenhil, C., Doreleijers, T. H., Vermeiren, R., Wouters, L. F., & van den Brink, W. (2004). Psychiatric disorders in a representative sample of boys in the Netherlands. Journal of the American Academy of Child and Adolescent Psychiatry, 43, 97–104. Wasserman, G. A., McReynolds, L. S., Lucas, C. P., Fisher, P., & Santos, L. (2002). The Voice DISC-IV with incarcerated male youths: Prevalence of disorder. Journal of the American Academy of Child and Adolescent Psychiatry, 41, 314–321. Wasserman, G. A., McReynolds, L. S., Ko, S. J., Katz, L. M., & Carpenter, J. R. (2005). Gender differences in psychiatric disorders at juvenile probation intake. American Journal of Public Health, 95, 131– 137. Weinbaum, C., Lyerla, R., & Margolis, H. S. (2003). Prevention and control of infections with hepatitis viruses in correctional settings. Centers for Disease Control and Prevention. MMWR Recommendations and Reports, 52, RR-1, 1–36. Williams, R. A., & Hollis, H. M. (1999). Health beliefs and reported symptoms among a sample of incarcerated adolescent females. Journal of Adolescent Health, 24, 21–27. Woolf, A., & Funk, S. G. (1985). Epidemiology of trauma in a population of incarcerated youth. Pediatrics, 75, 463–468.

Juvenile Justice: Advancing Research, Policy, and Practice Edited by Francine T. Sherman and Francine H. Jacobs Copyright © 2011 John Wiley & Sons, Inc.

CHAPTER

4

Children’s Rights and Relationships: A Legal Framework F R A N C I N E T. S H E R M A N

AND

HON. JAY BLITZMAN

T

hough we know that children have a set of evolving needs and capacities linked to their development, children’s law in the United States is not organized around child development or, in fact, any single organizing theory. Instead, it is a patchwork of sometimes contradictory provisions. After all, what developmental (or other) principle would restrict a child’s ability to vote until 18, to purchase alcohol until 21, yet sentence a 14-year-old to adult prison for life without the possibility of parole or allow him to waive his right to counsel in a delinquency case? Rather than reflecting a coherent vision of society’s responsibility to children, children’s law in the United States reflects history, a particularly American vision of individual rights, and the occasional nod to child development. It is helpful to think of children’s legal rights in two broad categories: autonomy-based rights and needs-based rights (see Buss, 2004a; Meyer, 2003; Woodhouse, 2001). Autonomybased rights pertain to children’s competencies or their abilities to make decisions and act on their own behalf—to be independent legal actors. They include the rights to direct one’s legal representation, make medical decisions as a mature minor, exercise free speech, contract, and enjoy procedural due process in court and administrative matters. Needs-based rights are rights to health, education, safety,

stable housing, and stable relationships; many of which are discussed as children’s human rights (United Nations Convention on the Rights of the Child, 1989). Although autonomy and need are useful classifications, these categories of rights are connected. For example, a child’s right to liberty or to freedom from unnecessary restraint is behind his or her autonomy-based rights to counsel and formal process in delinquency cases, but it is also behind the needs-based right to rehabilitative treatment should the child be found delinquent (Holland & Mlyniec, 1996). Although its detailed analysis is beyond the scope of this chapter, the United Nations Convention on the Rights of the Child (CRC) (1989), to which the United States is not a signatory, codifies for the international community this blend of need- and autonomybased rights. The CRC requires signatory nations to provide education, health care, stable homes, and a range of children’s needs. But the CRC also requires consideration of the child’s autonomy, limiting the exercise of parental rights to be “consistent with the evolving capacities of the child” and including children’s independent rights to speech, religion, association, and assembly (Melton, 2005). In the United States, children’s law developed through a legal tradition in which children were seen foremost as part of their 68

Children’s Rights and Relationships: A Legal Framework

families, with rights historically contingent on those of their parents (Cunningham, 2006). Parents retain that authority over their children unless parents are found to be unfit, at which time the state steps in as parens patriae (literally translated, “parent of country”), a doctrine drawn from British common law under which the state serves as parent to protect and care for the child. But in U.S. law the child’s, parents’, and state’s rights coexist, each contributing in some way to the rights of the others, and can be viewed as rights in relationship to each other (Buss, 2004b; Henning, 2006; Meyer, 2003; Minow, 1986; Ross, 2003). For example, children need their parents in order to fully realize many of their individual rights. Parents help children find lawyers to pursue their rights and help them obtain health care and education, and the law recognizes this, giving parents authority to make most health and education decisions for their children. Moreover, parents’ rights over their children’s decisions diminish as the child matures, when the law increasingly recognizes the child’s ability to make more of her own decisions—for example, in areas of health care, abortion, and, through counsel, the conduct of any delinquency case. The state, which exercises its authority as both police power and parens patriae, is authorized by the needs of the public (e.g., requiring parents to immunize children and children to be immunized) but also limited by the parents’ and child’s rights. Thus, the rights of the child, parent, and state function in relation to each other. This chapter provides an overview of U.S. law relating to children. Framed both in terms of needs- and autonomy-based rights and the legal dynamics among child, parent, and state, the chapter describes how the law organizes the world for children in the United States. Like the other chapters in this volume, the discussion focuses on children involved with

69

the child and family services, juvenile justice, and other state systems as well as critical institutions such as schools and health providers. The chapter discusses children’s law in relation to each of these systems and institutions independently and explores ways in which the law crosses or should cross these systems and institutions on behalf of children and families. With this ecological frame in mind, we acknowledge that children’s lives, including their legal lives, are related to their families, communities, and the social institutions that surround them.

CHILD, PARENT, AND STATE Children’s rights are contingent in significant measure on their parents. As recently as 2000, the U.S. Supreme Court acknowledged this, upholding a Washington state statute allowing a custodial parent to restrict grandparents from visiting with her children. Although the Court did not deny findings that the grandparents’ visitation had a positive effect on the children, providing a “large, central, loving family . . . ” (p. 61), the Court found that “ . . . [t]he liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this court” (Troxel v. Granville, 2000, p. 65, emphasis added). In its holding, the majority deferred to the parent’s decision about grandparent visitation, even in the face of a possible contrary interest on the part of the child, who was not separately consulted or represented under the statutory scheme. In his dissent, Justice Stevens suggested that the interest at work may be the child’s: While this Court has not yet had occasion to elucidate the nature of a

70

FRAMING

child’s liberty interests in preserving established familial or family-like bonds . . . it seems to me extremely likely that, to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation. (Troxel, pp. 88–89; Buss, 2003) When parents are unfit, the state steps in as parens patriae. The notion first appeared in U.S. law in 1839 in Ex Parte Crouse, in which Mary Ann Crouse’s father challenged her commitment to the Philadelphia House of Refuge for being “an incorrigible or vicious female under the age of 18 years” (p. 1). Upholding the commitment, the court wrote: The object of charity is reformation, by training its inmates to industry, by imbuing their minds with principles of morality and religion, by furnishing them with means to earn a living, and, above all, by separating them from the corrupting influence of improper associates. To this end may not the natural parents, when unequal to the task of education, or unworthy of it, be superceded by the parens patriae, or common guardian of the community? (Ex Parte Crouse, 1939, p. 2) The notion of the state as parens patriae was first recognized by the Supreme Court in two cases (Meyer v. Nebraska, 1923, and Pierce v. Society of Sisters, 1925), upholding challenges to the constitutionality of state statutes interfering with the rights of parents to control their children’s upbringing and education. Meyer and Pierce, both cited approvingly in Troxel,

THE

ISSUES

did not discuss the children’s independent interests or rights. Concern about children’s autonomy rights to be heard in court independently of the state or parents is a relatively recent development beginning, perhaps, with Prince v. Massachusetts (1944), the prosecution of a guardian for violating a child labor law by permitting her 9-year-old ward to sell Jehovah’s Witnesses periodicals in the evening. Although the court upheld the conviction, the case included references to the rights of children to exercise their religion and notes that “children have rights, in common with other people, in the primary use of highways” (p. 169). Ten years later, in the school desegregation case, Brown v. Board of Education, children were the named plaintiffs, and in 1967 the Supreme Court held that children had the right to be heard directly through their own attorneys during the adjudicatory phase of delinquency proceedings (In re Gault, 1967). The role of counsel and the extent to which children’s rights should be independent of adults is still the subject of debate. Does counsel have a responsibility to represent the child client’s expressed wishes or should counsel serve his or her view of the child client’s best interests? What happens when a parent’s view of what is best for her child, on a matter of fundamental interest such as education or health, conflicts with that child’s view? In an often-cited dissent in Wisconsin v. Yoder (1972), a case that reversed convictions of Amish parents who had violated a compulsory school attendance law, Justice Douglas argued that “(w)hile the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views” (p. 244). Although the growing consensus is that lawyers for children serve children best when they represent the child’s expressed wishes, providing representation comparable to that which an adult would

Children’s Rights and Relationships: A Legal Framework

receive (Green & Dohrn, 1996), the relationship between children’s and parents’ rights is a continuing theme in children’s law. The Interplay of Child, Parent, and State Rights in Juvenile Justice The state’s role as parens patriae is clearest in the child and family services system, where the rationale for the case is the parents’ abuse or neglect of their child. When youth are alleged to be status offenders—committing acts that are law violations only for children (e.g., truancy, incorrigibility, running away, underage drinking)—or delinquent—committing acts that would be criminal if the child were an adult—the state exercises its authority both as parens patriae and police power. In these cases the roles and rights of parents are less clear. While the law increasingly requires parental involvement in these cases (Henning, 2006), it also blames parents and provides parents relatively little protection or encouragement, although the case can result in their loss of custody and one of the state’s goals is to assist the child and his or her family (see Jacobs, Miranda-Julian, & Kaplan, Chapter 10, this volume). As the rights of parents are deemphasized in delinquency cases, the rights of youth are emphasized but never equal to those of adults, and they are often expressed in relationship to their parents. In 1967 the Supreme Court found that children charged with delinquency and subject to possible placement in a “training school” have a right to counsel because they risk a loss of liberty protected by the U.S. Constitution. This liberty interest, and the procedural rights that flow from it, belong to the child and not the parents (In re Gault,1967). Almost 20 years later, the Supreme Court found that children charged with delinquency could be detained in locked facilities with fewer procedural protections

71

than would be available to adults, reasoning that, although a juvenile’s interest in freedom from institutional restraints . . . is undoubtedly substantial . . . juveniles, unlike adults, are always in some form of custody . . . . They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. (Schall v. Martin, 1984, p. 256) Thus, even in the delinquency system with their individual right to liberty at stake, children’s rights are conceptualized in relation to those of their parents. Although the law in many states requires that parents participate in the delinquency process (e.g., attend hearings, contact probation, pay restitution for their children’s acts), the juvenile justice process, despite its original intent, is a crude tool for nurturing the parent– child bond. Parental responsibility and parent– child privilege laws illustrate this point. Parental responsibility laws, which impose civil, criminal, or quasi-criminal liability on parents for the illegal acts of their children, illustrate the conceptual difficulties inherent in balancing parents’ rights and responsibilities for their children once those children become involved in the juvenile justice system. These laws, which assume that parents are in some way at fault for their children’s delinquency and that they can be motivated to do better by legal liability, have been around for decades but, perhaps because they feel out of step with the complex task of parenting, are rarely enforced absent a high-profile case (Harris, 2006; Henning, 2006). Parent–child testimonial privilege is another area of inconsistent policy about parents in relation to their children charged with

72

FRAMING

crimes. Unlike the spousal testimonial privilege, which has a long history in common and statutory law (Trammel v. United States, 1980), as of 2006 only four states recognized a parent– child testimonial privilege, which would shield confidential communications between parent and child (Henning, 2006). Scholars have observed that the absence of a parent– child testimonial privilege creates a situation in which a child in trouble with the law would be wise not to seek help and advice from her parent. This runs counter to established legal tradition protecting the privacy of families and encouraging strong parent–child relationships, as well as the philosophy of the juvenile court to encourage parental responsibility for their children and the child’s trust of their parent, the juvenile justice process, and of their lawyer (Henning, 2006; Ross, 2003). As we examine the details of children’s rights and the law governing child-serving systems, we will continue to see a struggle, with inconsistent results, among the interests and rights of the child, parent, and state.

CHILDREN’S NEEDS-BASED RIGHTS Although there is federal constitutional law relating to children, most of the law governing children’s rights is state-based, and so there is significant state-to-state variation in children’s law and practice (Blitzman, 2007). Federal children’s policy is typically set through funding legislation, requiring states to approach children’s issues in proscribed ways. Federal constitutional law sets the floor for defining and protecting children’s rights, leaving states to pass laws complying with constitutional minimums, but which may test constitutional parameters (e.g., minor’s right to abortion) or to imagine the ceiling and exceed

THE

ISSUES

constitutional minimums in defining and protecting the rights of the child (e.g., broader rights to appointment of counsel in juvenile cases than are constitutionally required; state laws requiring a jury in a delinquency adjudication although none is required under the U.S. Constitution). The essentially local quality of children’s law and of the systems affecting children makes for 51 local laboratories that express community views about children and the roles of parents and society in relation to them (see Ross & Miller, Chapter 17, this volume). Education In San Antonio Independent School District v. Rodriguez (1973), in the context of a school funding challenge, the U.S. Supreme Court held that there was no fundamental right to education in the federal Constitution. While all 50 states have provisions in their constitutions establishing systems of public education, only 20 states recognize education as a fundamental right (Blumenson & Nilsen, 2003; see also Boundy & Karger, Chapter 14, this volume), and the extent of the right varies (Hubsch, 1989; School Districts’ Alliance for Adequate Funding of Special Education v. State, 2009). Even where states have established a child’s right to education, parents exercise that right, which is subject to restrictions imposed by the state under its police power. While parents have a long-standing federal constitutional right to make decisions concerning their children’s education, they do not have the ability to direct their children’s education in the face of reasonable state regulation. For example, failure to send a child to school can result in a finding of neglect and state intervention into the family (see, e.g., Clonlara, Inc. v. Runkel, 1989; Ossant v. Millard, 1972; State v. Newstrom, 1985).

Children’s Rights and Relationships: A Legal Framework

The state’s police power also provides authority for schools to suspend and expel students when they violate school rules or criminal laws or, in some states, when they are charged with a crime (Anderson, 2004; Blumenson & Nilsen, 2002; Reyes, 2006). Again, there is a great deal of state variation both in expulsion laws and in the extent to which alternative education is required or available to expelled students. Because the Supreme Court held that a student has a property interest in public education, schools must provide some procedural protections before expulsion or other deprivation of education (Goss v. Lopez, 1975). However, only a small minority of states recognize some degree of a right to alternative education for regular education students who have been expelled (Blumenson & Nilsen, 2003; Carroll, 2008). Despite the lack of a federal constitutional right to education, federal law sets educational policy through legislation such as the Civil Rights Act of 1964 (42 U.S.C. §2000a et seq. (1988), and Title I of the Elementary and Secondary Education Act, also known as No Child Left Behind (NCLB) (20 U.S.C. §6301 et seq.). These laws condition federal funding for education on a range of policydriven requirements. NCLB, for example, requires that 100% of students demonstrate proficiently in reading and mathematics by 2014, showing “adequate yearly progress” (AYP) along the way (No Child Left Behind, §6316). This mandate sets education policy but is not actually a right to adequate education held by any individual child and so is not individually enforceable (i.e., a child who fails state tests cannot sue his school district under NCLB). However, NCLB contains provisions that may be tools for lawyers seeking to improve a child client’s education, such as the ability of a student to transfer from a Title I school that has not met adequate yearly

73

progress for 2 years in a row (No Child Left Behind, §6316; Reichbach, 2004; see Boundy & Karger, Chapter 14, this volume, for a detailed discussion of education law and juvenile justice). Unlike regular education students, students with disabilities do have a right to education under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1401 et seq.), which guarantees a “free and appropriate public education” (FAPE) to every child with a disability in need of special education services. IDEA applies fully to all children with disabilities, including those in state systems such as the juvenile justice system (20 U.S.C. §§ 1412(a)(3)(A), (7); Blau & Allbright, 2006; see also Boundy & Karger, Chapter 14, this volume). This includes the right of youth in the justice system who have identified special education needs to receive specialized instruction and necessary developmental, supportive, and corrective services, and to be provided a full substantive curriculum (20 U.S.C.§1401 (3)(A); see Boundy & Karger, Chapter 14, this volume). Approximately one third of youth in juvenile correctional facilities have been diagnosed with learning disabilities, which, according to advocates and experts, underrepresents the actual population of incarcerated youth with learning disabilities (Quinn, Rutherford, Leone, Osher, & Poirier, 2005; Sedlak & McPherson, 2010; see also Boundy & Karger, Chapter 14, this volume). Health Like education, there is no clear legal right to health care for children in the United States. Children living in poverty—particularly poor children who are foster children, children in the juvenile justice system, and homeless children—have difficulty accessing health care; and their health needs often go unmet.

74

FRAMING

However, Medicaid, the State Children’s Health Insurance Program (SCHIP, 42 U.S. C. 1397aa, et seq. (2009)), the Foster Care Independence Act (FCIA, 42 U.S.C.A. § 670 (1999)), and the 2010 Patient Protection and Affordability Care Act (PPACA, PL111–148, 2010 HR 3590 (2010)) all have provisions designed to expand health insurance coverage for these populations of youth. The extent to which these access goals are met vary considerably, depending on how these laws are implemented by the states (English, 2006). Medicaid provides health insurance to low-income families as well as to categories of juveniles based on individual state plans. Thus, in Massachusetts, for example, youth in state custody are categorically eligible for Medicaid (MassHealth), although that is not the case in other states. Federal SCHIP (2009) extended Medicaid benefits to children who would not otherwise be income eligible, and FCIA originally made youth between 18 and 21, who were in foster care at age 18, an additional Medicaid-eligible group (English, 2006), which will be extended by PPACA, beginning in 2014, to age 26 (42 U.S.C. §§ 2004, 10201). However, the structure of Medicaid coverage and reimbursement leaves coverage gaps for children, particularly those involved with state and county systems. For example, under the “inmate exception” to Medicaid, “an inmate of a public institution” is ineligible for Medicaid reimbursement, and that eligibility exception has been interpreted to apply to youth in delinquency facilities both preand post-adjudication, such as detention and secure post-adjudication treatment (Burrell & Bussiere, 2002; Gupta, Kelleher, & Cueller, 2005). As a result, teens who are Medicaid eligible due to family poverty often have their Medicaid suspended (or in some cases terminated) when detained or incarcerated.

THE

ISSUES

When these youth re enter the community, they must apply to have their benefits reinstated, and because they often have little access to assistance with this process, many youth are not covered when they return to the community. A federal court in Massachusetts addressed another common gap in Medicaid coverage for youth, finding that state Medicaid provisions failed to provide adequate medical assessments and coordination of services for youth with serious emotional disturbance as required under the “Early and Periodic Screening, Diagnostic and Treatment” (EPSDT) provision of the federal Medicaid law (Rosie D. v. Romney, 2006). To reach this conclusion the court, like other courts presented with the issue, held that EPSDT provisions create private rights that can be enforced in the courts through a civil rights statute (42 U.S.C. § 1983; e.g., S. D. v. Hood, 2004). Rosie D. further found that the state had failed to provide adequate inhome behavioral support services for this population of children, necessitating instead, harmful confinement in residential facilities (Perkins, 2009). The litigation resulted in a statewide system of assessment and community-based mental health services (CBHI). The recent 2010 Patient Protection and Affordability Care Act (PPACA, P.L. 111–148), and the Health Care and Education Reconciliation Act (Recon. Act, P.L. 111– 152) expand health coverage for a number of vulnerable populations of youth. In addition to extending Medicaid eligibility to age 26 for former foster children (42 U.S.C. §§ 2004, 10201), they increase federal incentives to states to maintain broad eligibility for children under SCHIP (42 U.S.C. § 2101(a)) and require states to ensure that children who do not qualify for Medicaid are enrolled in a qualified plan through a state exchange (42 U.S.C. §2101 (b)), simplifying the process

Children’s Rights and Relationships: A Legal Framework

of enrollment for these children (42 U.S.C. §2201; National Health Law Program, 2010). Thus, needs-based rights for youth to education and health in the United States are addressed through a patchwork of federal and state laws and court decisions, and vary considerably from state to state. This patchwork is complicated for youth in the juvenile justice system, who tend to have a concentration of education and health needs, which often go unmet due to system fragmentation (see Farrell & Myers, Chapter 21, this volume; Ross & Miller, Chapter 17, this volume). For them, strategic use of federal laws mandating the type of education and health services states must provide to certain children is particularly critical.

CHILDREN’S AUTONOMYBASED RIGHTS On issues of both education and health, courts have developed children’s autonomy-based rights as well as their needs-based rights. For example, in education, issues of autonomy have come up in free-speech cases and procedural rights cases relating to school discipline. In health, theyarisein theareaofconsent tomedical treatment and abortion. Like all children’s law, the cases and statutes in these areas reflect the sometimes competing interests of the child, parent, and state. We treat health-care decision making next, as a case in point. Health-Care Decision Making We have recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical

75

decisions in an informed, mature manner; and the importance of the parental role in child-rearing. (Bellotti v. Baird, 1979, p. 634) As a general rule, minors do not have the legal right to consent to most medical procedures, whether routine or emergency. This is based on the belief that children’s judgment is not sufficiently mature to make medical decisions, and in the overarching legal principle of deference to parents’ decision making about their children’s upbringing, absent some showing of parents’ inability to act in their child’s interests. In Parham v. J. R. (1979), the Supreme Court articulated this assumption, upholding a Georgia law that allowed parents to “voluntarily” commit their child to a state mental hospital. The Court reasoned both that children had limited decision-making ability about medical matters and that parents generally have their children’s interests at heart. The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More importantly, it has recognized that natural bonds of affection lead parents to act in the best interests of their children. (p. 602) Under the statutory scheme, which the Court upheld, the admitting doctor safeguarded against parents who might not have their children’s best interests at heart. Parham expressed the tension between parents’ rights to raise their children and children’s individual rights, as well as the assumption behind much of children’s law— that parents exercise their children’s rights in their children’s interests. In this, we see

76

FRAMING

children’s and parents’ rights in relationship to each other. The court in Parham clearly articulated the child’s emerging liberty interest: “. . . we assume that a child has a protectable interest . . . in being free from unnecessary bodily restraint . . .” (442 U.S. 584, p. 601), which was later developed in the delinquency context in In re Gault (1967) to support procedural due process rights for children in delinquency adjudications (Weithorn, 2005). A number of exceptions to the general rule that children cannot consent to medical treatment have been recognized for youth who are determined, by a physician or judge, to be “mature minors,” and for certain classes of health issues (Cunningham, 2006; Hartman, 2002; Mutcherson, 2005). State law also provides for youth to consent to medical care in areas of public health concern such as reproductive health, communicable disease, substance use, or mental health (e.g., Mass. Gen L. Ann c. 21 §§12F; 12S). In these laws, public health concerns trump parental consent requirements, because obtaining parental consent may inhibit youth from accessing needed treatment. Even the Health Insurance Portability and Accountability Act (HIPAA, 29 U.S.C.A. § 1181 et seq.), which controls access to medical records, gives 16-year-olds authority to access and release their medical information (2009). In Planned Parenthood of Central Missouri v. Danforth (1976) and Bellotti v. Baird (1979), the Supreme Court considered the rights of a minor to make the decision to terminate her pregnancy. In Belotti, the Supreme Court struck down a Massachusetts statute that required parental consent for a minor to access an abortion, holding that minors, like adult women, have rights to reproductive choice. However, the Court balanced that autonomybased right with its view of the minor’s “inability to make fully informed decisions

THE

ISSUES

that take account of both immediate and long-term consequences” (pp. 633–634). To accommodate limitations on a minor’s decision-making ability while preserving her reproductive rights, the Court held that parental consent provisions are constitutional as long as the law also provides for a “judicial bypass,” providing the minor with an alternative to parental consent. The law of children’s autonomy-based rights in the areas of education and health is, in many ways, a moving target in which courts try to balance youth’s autonomy to assert independent interests in education and health with parents’ well-established right to make decisions about their child’s upbringing. Behind it all is the state’s interest in protecting children and society. That state interest moves to the foreground when we consider the law that applies to children in the delinquency and child and family services systems.

THE JUVENILE COURT AND CHILD-SERVING SYSTEMS The first juvenile court was established in 1899 in Chicago, and the model quickly spread so that by 1920 all but three states had some form of separate court to address the needs of abused, neglected, and “wayward” youth (Ainsworth, 1991). The original vision did not distinguish youth who were abused and neglected from those who violated the criminal laws. Rather, these youth were collectively seen as needing the “care and discipline” of the state as a “kind, just parent” (see Ayers, 1997). Youth who violated the criminal laws, like youth who were abused or neglected, required treatment and reform, not punishment. The systems and laws addressing youth charged with crimes, youth who are status offenders, and youth who are abused and

Children’s Rights and Relationships: A Legal Framework

neglected diverged through the 20th century so that we currently have a continuum of legal structures and rights. Youth who are charged with crimes have the most extensive due process rights, which, with some notable exceptions (e.g., right to a jury), almost mirror the rights of adult criminal defendants. These youth are increasingly considered different from their counterparts in the child and family services system, who may have fewer due process rights but are entitled to greater care and protection. Children’s Liberty Interests and the State as Parens Patriae and Police Power One thread of constitutional rights running through the law relating to children in state systems has to do with children’s libertyrelated interests—right to be free from restraint, freedom of movement, and freedom of association. These appear in cases about juvenile curfews, gang statutes, mental health confinement, and conditions in facilities and foster homes, and become central to the law governing the juvenile justice system. Courts acknowledge that the juvenile justice system reflects the “good intentions” (In re Gault, 1967, p. 19) of the state as parens patriae, and at times they defer to those intentions. In these situations the state’s parens patriae role can become conflated with the state’s role as police power in preventing juvenile crime and protecting the public; though these are really distinct, together they allow state conduct in relation to juveniles that would not be allowed for adults in the criminal justice system. An illustration of this can be found in cases allowing routine strip searches, without reasonable suspicion, of youth detained in the juvenile justice system (e.g., N. G. v. Connecticut, 2004; Smook v. Minnehaha County, 2006). In these cases the federal courts held that, because youth in the juvenile justice system

77

are particularly vulnerable and the state as parens patriae is responsible for protecting them, routine strip searches at detention intake, after visitation, and when youth leave and reenter the facility are lawful in the name of child protection. In these cases, the courts contrast the juvenile justice context with other youth contexts such as schools (Safford v. Redding, 2009) and immigration detention (Reno v. Flores, 1993), finding the state’s interest greater and the juvenile rights reduced in the juvenile justice context. It should be noted that Safford v. Redding (2009), in which the Supreme Court found unconstitutional the strip search of 13-year-old Savana Redding by school officials who suspected her of hiding ibuprofen in violation of school policy, was decided by the Supreme Court subsequent to the federal court decisions in the detention strip search cases, and so may influence that law in the future. For now, the detention strip search cases provide a striking illustration of the way the state’s twin interests in juvenile justice as parens patriae and police power can outweigh the child’s individual liberty interest. Juvenile Justice: Social Welfare Versus Social Control Asany parent knows andasthe scientific and sociological studies . . . confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” . . .The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures,includingpeer pressure. . . . The third broad difference is that the

78

FRAMING

character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. (Roper v. Simmons, 2005, pp. 569–570) [D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence. Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of “irretrievably depraved character” than are the actions of adults. It remains true that “[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” (Graham v. Florida, 2010, pp. 2026–2027) The tension between the juvenile court’s twin missions to promote social welfare and social control permeates the law of delinquency. Juvenile delinquency proceedings increasingly resemble adult criminal proceedings, yet they are described in noncriminal terms. The juvenile is adjudicated delinquent, not found guilty, and he or she is given a disposition, not a sentence. The due process revolution of the 1960s and 1970s, resulting in expanded autonomy rights for youth, came at the cost of reduced dedication in the law to rehabilitation as the exclusive mission of juvenile justice. While juvenile justice still emphasizes rehabilitation as the goal, an increased segment of youth charged with crimes are tried and sentenced as adults, and in their dispositions, many juvenile justice systems couple rehabilitation with some measure of retribution, incapacitation, and punishment.

THE

ISSUES

There is a growing consensus that a juvenile’s right to counsel—developed in the 40-plus years since Gault—should look as much like an adult lawyer–client relationship as possible (Green & Dohrn, 1996; Blitzman, 2007). But how can we give children control over their cases through client-directed, adultstyle representation, yet acknowledge that their judgment is influenced by their still immature status? This is a specific instance of a paradox in youth law—we simultaneously base policy on the notion that juveniles are different from adults and the notion that they should be treated the same as adults (see Poncz, 2008). The particular question of the younger juvenile’s role vis-a-vis counsel is addressed through the law of competency (to consult with a lawyer and understand the proceedings) (Dusky v. United States, 1960). Greater understanding of the meaning of competency for juveniles, particularly for juveniles in adult court, may help protect both the integrity of the judicial process and the rights of the child (Cauffman, 1999; Henning, 2006). The shift from a purely parens patriae framework for juvenile justice was part of what has been called the “due process bargain”: In exchange for procedural due process, courts limited the youth’s second chances, a founding principle of the separate juvenile justice system. For example, although it was the norm in the 1960s, few jurisdictions now completely seal juvenile records. Children are required to register as sex offenders, as are adults, if found delinquent for certain offenses; and findings of delinquency now carry collateral consequences such as school expulsion or ineligibility for subsidized housing (Henning, 2004; Markman, 2008), which can dramatically reduce a youth’s opportunities for a productive future and have a significant impact on the lives of parents and siblings. Despite these significant consequences, in many juvenile courts the

Children’s Rights and Relationships: A Legal Framework

culture continues to be casual and unaccountable, and the defense bar less than zealous, reflecting the incorrect belief that a finding of delinquency is a small price to pay for treatment. To combat this view there have been significant recent efforts to boost juvenile defense capacity, recognizing that the stakes are indeed high and special skills are needed (Majd & Puritz, 2009; Sterling, 2009). Procedural Due Process Youth have significant autonomy-based rights in juvenile justice. Perhaps foremost among these is the right to counsel at adjudication; in most jurisdictions that has come to mean a right to client-directed representation like an adult (Madj & Puritz, 2009). Youth also have the right to some procedural protections at a judicial transfer hearing to determine whether they will be tried in adult or juvenile court (Kent v. United States,1966), and at the delinquency adjudication, juveniles have the right to confront and cross-examine witnesses, to receive detailed and timely notice of charges, and to protection against self-incrimination (In re Gault, 1967). Like adults, juveniles are constitutionally protected against double jeopardy (Breed v. Jones, 1975), and the standard of proof for a juvenile delinquency adjudication is the same as that for an adult criminal proceeding—proof beyond a reasonable doubt (In re Winship, 1970). In deciding which of the adult criminal due process rights are essential to a fundamentally fair proceeding, and therefore must apply to juvenile delinquency proceedings, the Supreme Court balanced the need to preserve the unique, rehabilitative quality of juvenile proceedings, requiring procedural informality and flexibility, with the need to protect the liberty interest of juveniles that is at stake in delinquency proceedings (In re Gault, 1967; Breed v. Jones, 1975; In re Winship, 1970;

79

McKeiver v. Pennsylvania, 1971). Thus, rather than import all adult procedural rights wholesale into the juvenile process, Supreme Court jurisprudence examines each right separately using this calculus. In a plurality decision, which effectively ended the due process revolution, the Court concluded that juveniles charged with delinquency do not have a constitutional right to a jury trial. In McKeiver v. Pennsylvania (1971) the Court reasoned that a jury was not necessary for fair fact finding and would constrain the juvenile court’s distinguishing flexible and informal character. The Court relied on the assumption that the juvenile justice system is oriented to rehabilitation and treatment; thus, the potential deprivation of liberty is less than that for adults in the criminal justice system, requiring fewer safeguards. The holding in McKeiver essentially returned discretion to the states to design the contours of each juvenile justice system, a minority of which provide for a jury in juvenile cases through statute or case law, though the number is increasing (Birkhead, 2009; Blitzman, 2007). Although there are other differences between adult and juvenile procedural protections, such as the lack of a bail right for most juveniles, the absence of a jury right is perhaps the most striking procedural difference between adult criminal and juvenile delinquency proceedings and has ramifications for charging, plea bargaining, and the juvenile’s perception of the fairness of the process. The systemic tension over whether juveniles should have rights co-extensive with adults or be treated more protectively at the expense of some autonomy is ever present in delinquency law. Most jurisdictions, for example, allow a juvenile to waive his rights to be protected from self-incrimination, to confess to police in an interrogation without counsel or a parent present, and to waive the right to

80

FRAMING

be represented by counsel at trial (Berkeiser, 2002; National Juvenile Defender Center, 2000–2006). While the law governing interrogation and waiver of counsel must comply with constitutional minimums, it varies by state, reflecting local concern over crime and the administrative inconvenience that may result from increased procedural safeguards in the juvenile justice process. While (as we have seen) upholding parents’ rights to raise their children is a consistent thread in children’s law, parents are surprisingly minor players in the juvenile justice process (Henning, 2006; Ross, 2004; see Jacobs, MirandaJulian, & Kaplan, Chapter 10, this volume). Although many states require parents to appear in court, meet with probation, pay fees, and participate in treatment (Henning, 2006; see Greenwood & Turner, Chapter 23, this volume), in juvenile justice, parents’ interests in raising their children and society’s interest in promoting the parent–child relationship are subordinate to the child’s liberty interest and the state’s authority as parens patriae and police power. In the juvenile justice process the child, parent, and state too often become, practically speaking, adversaries. Interrogation At interrogation, juveniles may be particularly vulnerable, and there is an active debate over whether their rights require more (or different) protection than that which is provided for adults. Currently, most jurisdictions allow a juvenile to confess to police without an attorney or parent present. To determine whether the juvenile’s confession is made “knowingly, intelligently and voluntarily” (Fare v. Michael C., 1979, p. 724), and therefore admissible in court, courts must consider the “totality of the circumstances” surrounding the interrogation, just as they do for adult defendants (Fare v. Michael C., 1979). In this totality analysis, courts

THE

ISSUES

consider the youth’s age, emotional state, mental capacity, and whether his or her parent is present, among other factors. In these jurisdictions, a juvenile’s rights are essentially coextensive with those of an adult, and, other than considering youth as one factor within the larger totality, the framework for conducting an interrogation is not modified to accommodate the unique context of childhood. Thus, if a child, like an adult, requests counsel, the interrogation must end. However, the police may continue to interrogate a child even if he or she asks for a parent to be present (except in California; People v. Burton, 1971), even though the request to talk with a parent may be the child’s way of asserting his or her need for adult support and would be a much more natural request for a child to make than would asking for a lawyer. In contrast to this totality approach, a minority of jurisdictions require a parent or interested adult to be present at the interrogation of a juvenile, regardless of the totality of the circumstances surrounding the interrogation (King, 2006). While this interested adult or per se rule is ostensibly designed to protect the juvenile and the integrity of the process, most scholars believe it is inadequate protection against coerced confession. In fact, there have been many instances in which parents have encouraged children to confess, either unaware of the jeopardy to their child, in a parenting effort to encourage their child to take responsibility, or out of their own need to understand their child’s situation (Farber, 2004; King, 2006). Finally, a small minority of jurisdictions has what is arguably the fairest and most protective rule, requiring a lawyer to be present at interrogation for a confession to be admissible. The lawyer, directed by the youth client, preserves autonomy rights and protects the juvenile’s interest to be free from coercion

Children’s Rights and Relationships: A Legal Framework

as well as the state’s interest in investigating the crime and protecting the public (Feld, 2006). Other accommodations to youth’s vulnerabilities at interrogation include laws and policies requiring that interrogations be videotaped (Feld, 2006). Applying the adult totality standard to juvenile confessions, just like allowing juveniles to waive their right to counsel, provides youth with a level of autonomy over critical decisions that many argue is inappropriate and inconsistent with their developmental abilities (Grisso, 1981). The enormous risk to youth and society of erroneous convictions resulting from false confessions by juveniles has been well documented (Drizin & Warden, 2009). Moreover, it is strikingly inconsistent policy to allow youth to confess or waive counsel without the advice of a parent or attorney, but to give parents near complete authority over all other critical decisions for their teenage children. Yet that inconsistency is a central feature of the law of juvenile justice, where concerns about public safety and juvenile crime tend to trump policies that might better reflect youth development and capacity (Cunningham, 2006). The extent to which a juvenile’s age should be considered in the interrogation phase of the juvenile justice process is an ongoing issue and is before the U.S. Supreme Court in its 2010 term. In J.D.B. v. North Carolina (2009) a 13-year-old special education student was suspected of burglaries and questioned by police in school without being given Miranda warnings. J.D.B. provided incriminating statements that resulted in a finding of delinquency. The question before the Court is whether and to what extent age must be considered in determining whether a youth is in custody for Miranda purposes. In J. D. B., like in so many juvenile justice cases, the Court is being asked to

81

accommodate juveniles within a body of law designed for adults. Detention Approximately 22% of youth brought before the court for delinquency are detained (Puzzanchera, Adams & Sickmund, 2010), which generally refers to preadjudication locked confinement, used to ensure the juvenile’s appearance at trial and prevent him or her from committing additional crime before trial. Adult criminal law differs from juvenile law here. Adults have a constitutional right to pre-adjudication bail, but juveniles do not, although as of 2004, 16 states, by statute, provided juveniles with a right to bail like that of adults (Moriearty, 2008; e.g., Mass. Gen. L. Ann. c. 119 39H; Ga. Code Ann. § 15–11–47). In contrast to the law of adult detention, most juvenile detention is considered preventative. Courts decide at a hearing whether the juvenile is likely to appear at trial, and whether he or she poses a danger prior to adjudication; they then detain on the basis of that determination. However, without clear standards and accountability for the detention decision, detention is overused, and although not technically allowed, courts often consider the youth’s needs along with the risks they pose in making the detention decision. Thus, detention is used disproportionately for youth who are minor offenders and who violate conditions of probation (Holman & Ziedenberg, 2006). In Schall v. Martin (1984), the Supreme Court upheld New York’s preventative detention scheme, reasoning that detention is not as extreme a deprivation for juveniles as it is for adults because juveniles are “always in some form of custody” (p. 265). The Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative (JDAI) is a policy and programmatic response to the overuse of detention and the awareness of

82

FRAMING

the long-term harm that detention can cause for youth (Holman, & Ziedenberg, 2006). As of 2009, JDAI was in 110 jurisdictions in 27 states, and the initiative has contributed to reductions in detention utilization, improvements in public safety, and reductions in disproportionate minority contact with the juvenile system (Mendel, 2009; see also Bell & Mariscal, Chapter 6, this volume; Farrell & Myers, Chapter 21, this volume; Schiraldi, Schindler, & Goliday, Chapter 20, this volume; Schneider & Simpson, Chapter 22, this volume). Among its strategies, JDAI streamlines the court process, strengthens the defense role, and brings objectivity to the detention decision through the use of risk assessment instruments and data-driven analysis of detention utilization. Juveniles in the Adult Criminal Justice System An estimated 200,000 youth are tried, sentenced, or incarcerated as adults every year across the United States, most for nonviolent offenses; on any given day more than 3,600 youth are locked up in adult prisons (Campaign for Youth Justice, 2010; Woolard, 2005). Adult sentences carry significant long-term costs for youth and society, including a significant risk of victimization and trauma for the youth, lack of education, rehabilitative programming and family contact, and a greater likelihood that youth will reoffend than if they were retained in the juvenile justice system (Centers for Disease Control and Prevention, 2007). Although racial and ethnic disparities (disproportionate minority contact [DMC]) are a problem throughout the juvenile justice system, those disparities are particularly pronounced among youth tried and incarcerated in the adult system (Arya & Augarten, 2008; Campaign for Youth Justice, 2010; see also Bell & Mariscal, Chapter 6, this volume).

THE

ISSUES

Although chronologically minors, juveniles under 18 are tried and incarcerated in the adult system as a result of state laws that define the jurisdiction of juvenile justice systems according to criteria other than age. Waiver statutes (also called transfer or certification) are how states define which youth will be handled by the juvenile justice system and which by the adult criminal justice system. Thus, even though a youth may be chronologically a minor, state waiver laws define him or her out of the juvenile justice system based on formulas that may include offense, offense history, history of treatment in the juvenile justice system, and availability of social supports, as well as other factors (Champion & Mays, 1991; Fagan & Zimring, 2000; Feld, 1998, 2003; Kent v. United States, 1964; Torbet et al., 1996). In one sense, waiver laws represent the state’s judgment about which youth are likely to benefit from the rehabilitation offered in the juvenile justice system and, therefore, on which youth the state should expend its treatment resources. Waiver laws are categorized by who makes the jurisdiction determination: the legislature, judiciary, or prosecution. Take the hypothetical case of a 14-year-old juvenile charged with armed robbery. Under legislative waiver, the law might require that every juvenile 14 or older who is charged with armed robbery be tried and sentenced as an adult, automatically, regardless of his or her individual circumstances. Under judicial waiver, the law might provide for a hearing in which a judge would make an individual determination as to whether this juvenile poses a danger to the public and is amenable to rehabilitation allowing him or her to be retained in the juvenile system. Under prosecutorial waiver, the prosecution has the option of filing the case in adult criminal court or in juvenile court based on the prosecutor’s evaluation of what is in the public interest or other criteria that might be

Children’s Rights and Relationships: A Legal Framework

set out in statute. Over the past 20 years, every state has modified its waiver laws in some way, and many have amended their laws multiple times, struggling to decide which youth deserve the benefits of the juvenile justice system, thus largely defining the state’s overall vision of juvenile justice (Blitzman, 2007; Merlo, Benekos, & Cook, 1996). Under the Juvenile Justice and Delinquency Prevention Act (JJDPA, 2002), states must separate incarcerated juveniles from adults; however, this does not apply to juveniles tried as adults (§223(a)(10)(H)). Thus, in 2008 there were 2,484 juveniles serving sentences of life without the possibility of parole in the adult prisons. These youth were under 18 at the time of their crimes and were tried and sentenced in the adult criminal justice system. Sixteen percent of them were 15 or under when they committed their crimes (Amnesty International & Human Rights Watch, 2008). In Roper v. Simmons (2005), the Supreme Court declared the death penalty unconstitutional when applied to juveniles who were under 18 years of age at the time of their crime (see also Stanford v. Kentucky, 1989; Thompson v. Oklahoma, 1988). In doing so, the Court acknowledged that youth are different from adults developmentally, making the death penalty disproportional to any crime a youth may commit. The Court made specific developmental findings, that: &

&

&

Youth lack maturity and responsibility, which leads them to reckless and impulsive behavior. Youth are more vulnerable than adults to outside negative influences, generally negative peer influences. Youth are changing and do not yet have fully developed characters or personalities and so may grow out of criminal behaviors.

83

These developmental findings echo the principles that informed the juvenile court initially, but from which juvenile justice had been drifting beginning in the late 1980s. Hopefully, Roper marks a return to a developmentally informed juvenile justice policy in which it becomes more difficult to try and punish juveniles as adults, and in which laws governing interrogation, detention, trial rights, and sentencing reflect the reduced capacity of juveniles while respecting their rights to autonomy. In Graham v. Florida (2010), the Court extended the reasoning in Roper, and held that a sentence of life without parole was unconstitutional for juveniles in non-homicide cases. In its decision, the Court reinforced the Roper findings that juveniles are not as culpable as adults as a result of their developmental immaturity and went even further, acknowledging developments in neuroscience that show differences between adolescent and adult brains that may inhibit juveniles’ abilities to control their behavior. As of the decision in Graham, there were 129 juvenile nonhomicide offenders serving life without parole sentences (p. 2024). Status Offenses Status offenses are those offenses that apply only to minors, such as truancy, running away, underage drinking, or curfew violations. In many states, some of these laws are grouped together in comprehensive statutory schemes with titles such as Children in Need of Services (CHINS) or Persons in Need of Services (PINS) (e.g., Mass. Gen. L. Ann. C. 119 §§ 21, 39E-39I). Under the JJDPA, status offenders cannot be held in secure facilities with delinquent youth unless they violate a valid court order (VCO). That prohibition is called the Deinstitutionalization of Status Offenders

84

FRAMING

(DSO) mandate, and results in dispositions for these youth with child and family services systems and not delinquency or youth corrections systems (42 U.S.C.A. § 5633(B)). Despite the DSO mandate, juveniles are detained for status offenses when they violate a court order requiring certain behavior. This has been referred to as “bootstrapping” delinquency onto a status offense, and has a disproportional impact on girls who tend to enter the juvenile justice system for misbehaviors such as running away and violating court orders. These actions, then, trigger detention even when the underlying offense is a status offense (Sherman, 2005). Notably, the JJDPA reauthorization bill, which passed the U.S. Senate Judiciary Committee in 2009 (S. 678), eliminates the VCO exception to the DSO mandate, compelling states to address status offending youth in family services, and not juvenile justice systems. That bill, however, did not become law and future treatment by Congress of the VCO exception remains to be seen. Youth curfew ordinances are a type of status offense that have proliferated in the past 15 years, and have resulted in a number of court challenges that are shaping the contours of children’s rights. Juvenile curfews have passed with a range of rationale—to reduce crime and victimization, reduce gang violence, and assist parents’ efforts to control their teenage children. The majority of studies, however, show that juvenile curfews are ineffective at reducing crime. Challenges to juvenile curfews generally consider whether juveniles have a constitutional interest in freedom of movement (or association) and whether that interest is equal to that of adults. The majority of courts (federal and state) that have considered a juvenile curfew have found that juveniles do have a fundamental constitutional right to free movement. However,

THE

ISSUES

courts vary in the precise formulation of that right and their holdings as to whether individual curfew ordinances are constitutional (Herman, 2007; Jashinsky, 2007; Kaminsky, 2003; see e.g., Commonwealth v. Weston, 2009; Ramos v. Town of Vernon, 2003) States vary on the extent of due process required in a status offense case, where counsel is not constitutionally mandated and the case falls somewhere between delinquency and abuse and neglect, often revolving around parents’ difficulties handling teenage children’s behaviors. A few states, like Massachusetts, always provide counsel for the child and provide counsel for the parent if a loss of custody is likely (In re Hillary, 2008). Child Maltreatment Every state has a statutorily proscribed system for reporting, investigating, prosecuting, and protecting children from maltreatment (abuse and neglect). These systems are state created and are not required under the U.S. Constitution (Deshaney v. Winnebago County Department of Social Services, 1989). Although they vary somewhat across states, they are all grounded in the states’ parens patriae authority to protect and care for children when parents are unable to do so, and they all reflect a number of federal mandates. The guiding federal statutes are the Child Abuse Prevention and Treatment Act (CAPTA, 2003, 42 U.S.C. A. § 5101(2003), which prompted more uniform definitions of child abuse and neglect, mandatory reporting laws, guardian ad litem (GAL) appointments and records confidentiality; the Adoption Assistance and Child Welfare Act (2008, 42 U.S.C. 621), which required states to make “reasonable efforts” to prevent placement before removing children from their homes, shifting the focus away from removal and toward reunification and

Children’s Rights and Relationships: A Legal Framework

placement prevention; and the Adoption and Safe Families Act (ASFA, 1997, 42 U.S.C. 671 (2009)), which was designed to address indeterminate foster care placements and frequent changes in foster homes by mandating timelines for reunification or permanent placement (adoption or kinship) of a child, once child protection proceedings are initiated. Each of these federal laws ties state funding to implementation of the particular act’s mandates through state law. Although state laws and systems typically have the dual missions of family preservation and child protection, these can be in conflict. Child welfare law in the United States cycles through emphasis on removing children from their homes for their protection and keeping children in their homes for stability. The systems have variously favored orphanages, group homes, foster care, kinship care, and adoption; they have been accused of being under- and over-intrusive in families and have been guided by social science and public perceptions about “good” parenting (Bernstein, 2001). State laws typically set forth a system of abuse reporting and investigation as well as a system of services provided to willing families. They also provide for a court process, which can be initiated by an allegation that the child is abused, neglected, or abandoned and that the parent is unwilling or unable to accept and benefit from social services. Statutory definitions of abuse and neglect tend to be somewhat vague and ambiguous, making them vulnerable to misuse in situations rooted in family poverty or cultural issues, and some have been challenged as vague in the courts (Alsager v. District Ct. of Polk City, 1975). Like in the juvenile justice system, children of color are represented in the child protection system disproportionate to their presence in the population, and experience multiple foster

85

placements and lack of permanency at rates higher than their White counterparts. These findings suggest, along with social inequities, that existing laws may be too open to the exercise of discretion without adequate standards. But others counter that they also reflect the challenges of parenting for poor, stressed families, many of whom are families of color in urban areas (Bartholet, 2009; Chapin Hall Center for Children, 2008). All children who are the subject of maltreatment actions are supposed to be provided representation of some sort as the result of CAPTA, which mandates the appointment of a lawyer or non-lawyer GAL in all child abuse and neglect cases (Abrams & Ramsey, 2010; Koh Peters, 2007). However, states differ as to whether counsel acts as a lawyer, directed by the child client as much as possible, or GAL, representing the child’s best interest. There is a general consensus that attorneys for youth in delinquency cases should provide client-directed representation, as they would for an adult defendant. However, accommodating age and youth development, many attorneys for children in child abuse and neglect proceedings see their role as representing what they perceive to be the best interests of the child. Some state laws and rules support that conceptualization, despite an emerging consensus in the bar that client–directed representation is the child’s right (American Bar Association, 2006, 2009). The role and professional responsibility of attorneys for children is the subject of ongoing discussion in the profession, and a 2009 study found that in child protection cases, many children still go unrepresented (First Star & Children’s Advocacy Institute, 2009). The U.S. Supreme Court found that the liberty interest at stake in a termination of parental rights proceeding did not warrant a constitutionally protected right to counsel

86

FRAMING

for parents in all cases (Lassiter v. Department of Social Services, 1981), but states provide for court-appointed counsel by statute. In Santosky v. Kramer (1984), the Court held that the state must prove its case for a permanent termination of parental custody by clear and convincing evidence. Rights to Treatment and Services: Conditions of Confinement for Youth Although every state has a juvenile justice system charged with rehabilitating youth who commit crimes, and a child and family services system including foster care and other out-of-home programs to protect and provide services to youth who are victims of parental abuse or neglect, those systems often fail to do what they are required to do and, in some cases, can themselves be abusive to the youth they are charged with protecting. Particularly in juvenile justice detention and programs, reports of failure to provide adequate mental and physical health services as well as outright abusive conditions—such as use of pepper spray, excessive use of physical restraints, and physical and sexual assaults of youth by staff— occur too frequently (Soler, Shoenberg, & Schindler, 2009). When such abuse occurs, what laws protect youth, and how can they hold systems accountable? The law addressing children’s rights when the systems fail has a constitutional dimension through cases that have found that youth who are in the juvenile justice, mental health, or child and family services system have some form of right to treatment, because treatment is the reason for the youth’s confinement (Holland & Mlyniec, 1995). Systems may also be held accountable to provide services to youth through federal statutes mandating services or accommodations such as the Americans with Disabilities Act (ADA, 42 U.S.C.

THE

ISSUES

§ 12132, et seq.), the Individuals with Disabilities Education Act (IDEA, 20 U.S.C. § 1400, et seq. (i) (2004)), or the Civil Rights for Institutionalized Persons Act (CRIPA, 42 U.S.C. § 1997). Although juvenile courts that place children in the custody of the family service agencies or juvenile justice systems may play a role in requiring specific placements and services, in many states courts are constrained from ordering child-serving agencies to provide specific services by the doctrine of separation of powers. Youth who have not been convicted of a crime cannot be subject to conditions that amount to punishment, and, because a delinquency finding is not a criminal conviction, this protection applies to all youth in the juvenile justice system (Santana v. Collazo, 1983). Moreover, juveniles incarcerated in the juvenile justice system have a right to safety, adequate medical and mental health care in custody, some due process protections, access to their families and the courts, and to education and other programming (Dale & Soler, 2008; Soler et al., 2009; Youngberg v. Romeo, 1982). Although what we know about effective juvenile treatment has grown considerably over the past decade (see Beyer, Chapter 1, this volume; Greenwood & Turner, Chapter 23, this volume: Schiraldi, Schindler, & Goliday, Chapter 20, this volume) and facilities and courts can look to professional standards to determine the contours of treatment in juvenile justice, identifying poor conditions and enforcing reforms is complex. Youth often do not have access to counsel once they are incarcerated. Over the past two decades, federal courts have become less hospitable to conditions litigation, and youth are not legally entitled to best practices but only to treatment that satisfies minimal constitutional and statutory standards (Dale & Soler, 2008). However,

Children’s Rights and Relationships: A Legal Framework

increased federal Justice Department oversight of conditions in juvenile facilities through CRIPA, the development of performancebased and other standards for youth detention and corrections, increased awareness of youth suicide in facilities (Hayes, 2009), enforcement of the Prison Rape Elimination Act in juvenile facilities (PREA, 45 U.S.C. §15601; Beck, Harrison, & Guerino, 2010), and the Office of Juvenile Justice and Delinquency Prevention’s (OJJDP) 2010 publication of data from the Survey of Youth in Residential Placement (Sedlak & McPherson, 2010) all point toward improved conditions and treatment for youth in the juvenile justice system (Soler et al., 2009).

87

relationship to the other two. Children have similar rights to those of adults, but often to a lesser degree; and children’s rights are always framed by their families and the institutions with which they are involved. Children in state systems retain rights they have generally— to some measure of free speech; freedom of association, movement, special education; some sort of health care—and, by virtue of their system and court involvement, they have additional rights—to counsel, some procedural due process, some measure of treatment. When children’s law is functioning properly, it both protects and respects youth.

REFERENCES CONCLUSION The juvenile justice system is essentially a legal system, with each youth’s initial involvement marked by an alleged law violation that initiates the legal process. Because the laws governing juvenile justice practices are a patchwork of state and federal statutes that attempt to reconcile the various, sometimes competing, interests of youth, their parents, and the state itself, many outside the system simply cannot understand how it works— indeed, they view it as virtually impenetrable. This places informed participation in the process beyond the reach of a significant percentage of youth and families who end up subject to its decisions. Children’s law is best understood when categorized into needs-based and autonomybased rights, although these categories are to some extent artificial and they are often related. In addition, children’s law strives to balance the rights and interests of children with those of parents and the state. Each has a separate role to play, but each role operates in

Abrams, D. E., & Ramsey, S. H. (2010). Children and the law: Doctrine, policy and practice. (4th ed.). St. Paul, MN: West, Thomas Reuters. Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. 621 (proposed legislation—effective October 2008). Adoption and Safe Families Act of 1997, 42 U.S.C. 671 (2009). Ainsworth, J. (1991). Re-imagining childhood and reconstructing the legal order: The case for abolishing the juvenile court. North Carolina Law Review, 69, 1083–1113. Alsager v. District Ct. of Polk County, Iowa, 406 F. Supp. 10 (S.D. Iowa 1975). American Bar Association. (2006). Young Lawyers Division report to the House of Delegates. American Bar Association. (2009). Section on Litigation Standing Committee on Legal Aid and Indigent Defendants, report to the House of Delegates, Recommendation. Amnesty International & Human Rights Watch. (2008). The rest of their lives: Life without parole for youth offenders in the United States. Updating the report first published in 2005, The rest of their lives: Life without parole for child offenders in the United States. Americans with Disabilities Act, 42 U.S.C. §12132, et seq.; 28 C.F.R. §35.130(d). Anderson, C. (2004). Double jeopardy: The modern dilemma for juvenile justice. University of Pennsylvania Law Review, 152, 1181–1219.

88

FRAMING

Arya, N. & Augarten, I. (2008). Critical condition: AfricanAmerican youth in the justice system. Washington, DC: Campaign for Youth Justice. Ayers, W. (1997). A kind and just parent: The children of the juvenile court. Boston, MA: Beacon Press. Bartholet, E. (2009). The racial disproportionality movement in child welfare: False facts and dangerous directions. Arizona Law Review, 51, 871–932. Beck, A. J., Harrison, P. M., & Guerino, P. (2010). Sexual victimization in juvenile facilities reported by youth, 2001–09. Special Report. U. S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Bellotti v. Baird, 443 U.S. 622 (1979). Berkheiser, M. (2002). The fiction of juvenile right to counsel: Waiver in the juvenile courts. Florida Law Review, 54, 577–686. Bernstein, N. (2001). The lost children of Wilder: The epic struggle to change foster care. New York, NY: Pantheon. Birkhead, T. R. (2009). Toward a theory of procedural justice for juveniles. Buffalo Law Review, 57(5), 1–72. Blau, A., & Allbright, A. (2006). 50-state roundup: Ensuring children with disabilities a free appropriate public education. Mental and Physical Disability Law Reporter, 30, 11–19. Blitzman, J. (2007). Gault’s promise. Barry Law Review, 9, 67–98. Blumenson, E., & Nilsen, E. (2002). One strike and you’re out? Constitutional constraints on zero tolerance in public education. Washington University Law Quarterly, 86, 65–117. Breed v. Jones, 421 U.S. 519 (1975). Brown v. Board of Education, 347 U.S. 483 (1954). Burrell, S., & Bussiere, A. (2002). The “inmate exception”and its impact on health care services for children in out-of-home care in California. San Francisco, CA: Youth Law Center. Buss, E. (2003). Symposium: The relationship rights of children. Children’s associational rights?: Why less is more. William and Mary Bill of Rights Journal, 1101–1116. Buss, E. (2004a). Constitutional fidelity through children’s rights. Supreme Court Review, 355–407. Buss, E. (2004b). The public and private face of family law. University of Chicago Legal Forum, 27–55. Carroll, M. (2008). Educating expelled students after No Child Left Behind: Mending an incentive structure that discourages alternative education and reinstatement. University of California Los Angeles Law Review, 55, 1909–1968.

THE

ISSUES

Campaign for Youth Justice. (2010) Key Facts: Youth in the justice system. Retrieved from www .campaignforyouthjustice.org/documents/FS_Key YouthCrimeFacts.pdf Cauffman, E., Woolard, J., & Reppucci, D. N. (1999). Justice for juveniles: New perspectives on adolescents’ competence and culpability. Q.L.R. 403–419. Centers for Disease Control and Prevention. (2007). Effects on violence of laws and policies facilitating the transfer of youth from the juvenile to the adult system: A report on recommendations of the task force on community prevention services. Morbidity and Mortality Weekly Report, 56 (No. RR-9). Available online at www.cdc.gov/mmwr/pdf/rr /rr5609.pdf Champion, D. J., & Mays, L. G. (1991). Transferring juveniles to criminal courts: Trends and implications for criminal justice. Symposium on serious juvenile crime. Notre Dame Journal of Ethics & Public Policy, 5, 257–503. Chapin Hall Center for Children. (2008). Understanding racial and ethnic disparities in child welfare and juvenile justice. In Racial and ethnic disparity and disproportionality in child welfare and juvenile justice: A compendium. (2009). Center for Juvenile Justice Reform, Georgetown University. Retrieved from http://cjjr.georgetown.edu/. Child Abuse Prevention and Treatment Act of 1974, 42 U.S.C.A. § 5101 (2003). Civil Rights Act of 1964, 42 U.S.C. §2000a et seq. (1988).Current through P.L. 111–202 (excluding P.L. 111–148, 111–152, 111–159, 111–173, 111– 192, and 111–198), approved July 13, 2010. Civil Rights for Institutionalized Persons Act of 1980, 42 U.S.C. § 1997. Clonlara, Inc. v. Runkel, 722 F.Supp. 1442 (E.D.Mich., 1989). Commonwealth v. Weston, 913 N.E.2d 832 (Mass. 2009). Cunningham, L. (2006). A question of capacity: Towards a comprehensive and consistent vision of children and their status under the law. University of California at Davis Journal of Juvenile Law & Policy, 10, 275–377. Dale, M. J., & Soler, M. I. (2008). Representing the child client (Vols. 1–2). New York, NY: Matthew Bender. Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). Drizin, S. & Warden, R. (Eds.). (2009). True stories of false confessions. Evanston, IL: Northwestern University Press.

Children’s Rights and Relationships: A Legal Framework

Dusky v. United States, 362 U.S. 402 (1960). English, A. (2006). Youth leaving foster care and homeless youth: Ensuring access to health care. Temple Law Review, 79, 439–459. Ex Parte Crouse, 4 Whart. 9 (1839). Fagan, J., & Zimring, F. (Eds). (2000). Changing borders of juvenile justice: Transfer of adolescents to the criminal court. Chicago, IL: University of Chicago Press. Farber, H. (2004). The role of the parent/guardian in juvenile custodial interrogations: Friend or foe? American Criminal Law Review, 41, 1277–1312. Fare v. Michael C., 442 U.S. 707 (1979). Feld, B. (1998). Juvenile and criminal justice systems’ response to youth violence. Crime & Justice, 24, 189–262. Feld, B. (2003). Race, politics, and juvenile justice: The Warren Court and the conservative “backlash.” Minnesota Law Review, 87, 1447–1578. Feld, B. (2006). Police interrogation of juveniles: An empirical study of policy and practice. Journal of Criminal Law and Criminology, 97, 219–316. First Star & Children’s Advocacy Institute. (2009). A child’s right to counsel: A national report card on legal representation for abused and neglected children. San Diego, CA: University of San Diego Law School. Foster Care Independence Act of 1999, 42 U.S.C.A. § 670. Ga. Code Ann., § 15–11–47 (2006) (proposed legislation as of 2009; amended). Goss v. Lopez, 419 U.S. 565 (1975). Graham v. Florida, 130 S. Ct. 2011, 560 U.S. ___ (2010). Green, B. A., & Dohrn, B. (1996). Foreword: Children and the ethical practice of law. Fordham Law Review, 64, 1281–1300. Grisso, T. (1981). Juveniles’ waiver of rights: legal and psychological competence. New York, NY: Plenum Press. Gupta, R. A., Kelleher, K. J., & Cueller, A. (2005). Delinquent youth in corrections: Medicaid and re-entry into the community. Pediatrics, 115, 1077–1083. Harris, L. J. (2006). An empirical study of parental responsibility laws: Sending messages, but what kind and to whom? Utah Law Review, 5–34. Hartman, R. G. (2002). Coming of age: Devising legislation for adolescent medical decisionmaking. American Journal of Law and Medicine, 28, 409–453. Hayes, L. M. (2009). Juvenile suicide in confinement: A national survey. OJJDP, U.S. Department of Justice

89

Office of Justice Programs. Retrieved from www .ojjdp.ncjrs.org Health Care and Education Reconciliation Act of 2010 (Recon. Act, P.L. 111–152). Health Insurance Portability and Accountability Act of 1996, 29 U.S.C.A. § 1181 et seq. (2009). Henning, K. (2004). Eroding confidentiality in delinquency proceedings: Should schools and public housing authorities be notified? New York University Law Review, 79, 520–611. Henning, K. (2006). It takes a lawyer to raise a child: Allocating responsibilities among parents, children, and lawyers in delinquency cases. Nevada Law Journal, 6, 836–889. Herman, D. (2007). Juvenile curfews and the breakdown of the tiered approach to equal protection. New York University Law Review, 82, 1857–1894. Holland, P., & Mlyniec, W. J. (1995). Whatever happened to the right to treatment: The modern quest of a historical promise. Temple Law Review, 68, 1791–1836. Holman, B., & Ziedenberg, J. (2006). The dangers of detention: The impact of incarcerating youth in detention and other secure facilities. Washington, DC: Justice Policy Institute. Hubsch, A.W. (1989). Education and self-government: The right to education under state constitutional law. Journal of Law and Education, 18, 134–140. In re Gault, 387 U.S. 1 (1967). In re Hillary, 39 Mass. App. Ct. 1114 (1995). In re J.D.B., 686 S.E.2d 135 (N.C. 2009), cert. granted sub nom. J.D.B. v. North Carolina, 79 U.S.L.W. 3268 (U.S. Nov. 1, 2010). In re Winship, 397 U.S. 358 (1970). Individuals with Disabilities Education Act of 2004, 20 U.S.C. § 1400, et seq. (i). Jashinsky, O. (2007). Liberty for all? Juvenile curfews: Always an unconstitutional and ineffective solution. Rutgers Journal of Law & Public Policy, 4, 546–574. Juvenile Justice and Delinquency Prevention Act of (JJDPA) of 1974 (P.L. 93–415, 88 Stat. 1109) and subsequent reauthorizations (1977, 1980, 1984, 1988, 1992, 2002), 42 U.S.C. § 5601 et seq. Kaminsky, T. (2003). Rethinking judicial attitudes toward freedom of association challenges to teen curfews: The first amendment exception explored. New York University Law Review, 78, 2278–2303. Kent v. United States, 383 U.S. 541 (1966). King, K. (2006). Waiving childhood goodbye: How juvenile courts fail to protect children from

90

FRAMING

unknowing, unintelligent, and involuntary waivers of Miranda rights. Wisconsin Law Review, 431–478. Koh Peters, J. (2007). Representing children in child protective proceedings 2007: Ethical and practical dimensions (3rd ed.). Charlottesville, VA: Lexis Law Publishers. Lassiter v. Department of Social Services, 452 U.S. 18 (1981). Majd, K., & Puritz, P. (2009). The cost of justice: How low-income youth continue to pay the price of failing indigent defense systems. Georgetown Journal on Poverty Law & Policy, 16, 543–583. Markman, J. (2008). Community notification and the perils of mandatory juvenile sex offender registration: The dangers faced by children and their families. Seton Hall Legislative Journal, 32, 261–285. Mass. Gen. Laws, ch. 119 §39H (2008). McKeiver v. Pennsylvania, 403 U.S. 528 (1971). Medicaid 42 U.S.C. § 1396 et seq.;1;(1975)(proposed legislation—effective April 1, 2009). Melton, G. B. (2005). Treating children like people: A framework for research and advocacy. Journal of Clinical Child and Adolescent Psychology, 34(4), 646–657. Mendel, R. (2009). Two decades of JDAI: A progress report: From demonstration project to national standard. Baltimore, MD: Annie E. Casey Foundation. Merlo, A., Benekos, P., & Cook, W. (1996). Getting tough with youth: Legislative waiver as crime control. Juvenile & Family Court Journal, 48, 1–15. Meyer, D. D. (2003). The modest promise of children’s relationship rights. William and Mary Bill of Rights Journal, 11, 1117–1137. Meyer v. Nebraska, 262 U.S. 390 (1923). Minow, M. (1986). Rights for the next generation: A feminist approach to children’s rights. Harvard Women’s Law Journal, 9, 1–24. Moriearty, P. L. (2008). Combating the color-coded confinement of kids: An equal protection remedy. New York University Review of Law and Social Change, 32, 285–343. Mutcherson, K. (2005) Whose body is it anyway? An updated model of healthcare decision-making rights for adolescents. Cornell Journal of Law and Public Policy, 14, 251–325. N.G. v. Connecticut, 382 F.3d 225 (2nd Cir. 2004). National Health Law Program. (2010). Analysis of the Health Care Reform Law: PPACA and the Reconciliation Act. Retrieved from www.health law.org/index.php?option¼com_content&view¼

THE

ISSUES

article&id¼456:health-reform&catid¼51&Itemid ¼212 National Juvenile Defender Center. (2000–2006). State Juvenile Indigent Defense Assessments. No Child Left Behind Act of 2001, 20 U.S.C.A. §6301 et. seq. Ossant v. Millard, 72 Misc.2d 384, 339 N.Y.S.2d 163 (N.Y.Fam.Ct. 1972). Parham v. J.R., 442 U.S. 584 (1979). Patient Protection and Affordability Care Act (PPACA, PL111–148, 2010 HR 3590) (2010). People v. Burton, 6 Cal.3d 375 (1971). Perkins, J. (2009). Fact Sheet: Medicaid EPSDT Litigation (National Health law Program). Retrieved from www.healthlaw.org/images/pubs /EPSDT_Docket.pdf Pierce v. Society of Sisters, 268 U.S. 510 (1925). Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). Poncz, E. (2008). Rethinking child advocacy after Roper v. Simmons: Kids are just different and kids are just like adults advocacy strategies. Cardozo Public Law, Policy and Ethics Journal, 6, 273–343. Prince v. Massachusetts, 321 U.S. 158 (1944). Prison Rape Elimination Act, 42 U.S.C.A. § 15601. Puzzanchera, C., Adams, B., & Sickmund, M. (2010). Juvenile Court Statistics 2006–2007. Pittsburgh, PA: National Center for Juvenile Justice. Quinn, M. M., Rutherford, R. B., Leone, P. E., Osher, D. M., & Poirier, J. M. (2005). Youth with disabilities in juvenile corrections: A national survey. Exceptional Children, 71(3), 339–345. Ramos v. Town of Vernon, 353 F.3d 171 (2nd Cir. 2003). Reichbach, A. (2004). The power behind the promise: Enforcing No Child Left Behind to improve education. Boston College Law Review, 45, 667–704. Reno v. Flores, 507 U.S. 292, 315–19 (1993). Reyes, A. (2006). The criminalization of student discipline programs and adolescent behavior. Saint John’s Journal of Legal Commentary, 21, 73–109. Roper v. Simmons, 543 U.S. 551 (2005). Rosie D. v. Romney, 410 F. Supp.2d 18 (D. Mass. 2006). Ross, C. (2003). Implementing constitutional rights for juvenile: The parent-child privilege in context. Stanford Law & Policy Review, 14, 85–120. S.D. ex rel. Dickson v. Hood, 391 F. 3d 581 (5th Cir. 2004). Safford v. Redding, 557 U.S., 129 S. Ct. 2633, 77 USLW 4591 (2009).

Children’s Rights and Relationships: A Legal Framework

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). Santana v. Collazo, 714 F.2d 1172 (1st Cir. 1983). Santosky v. Kramer, 455 U.S. 745 (1982). Schall v. Martin, 467 U.S. 253 (1984). School Districts’ Alliance for Adequate Funding of Special Educ. v. State, 202 P.3d 990 (Wash. Ct. App. 2009). Sedlak, A. J., & McPherson, K. S. (2010). Youth needs and services: Findings from the survey of youth in residential placement. Juvenile Justice Bulletin. U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Sherman, F. (2005). Pathways to juvenile detention reform: Detention reform and girls: Challenges and solutions. Baltimore, MD: Annie E. Casey Foundation. Smook v. Minnehaha County, 457 F.3d 806 (8th Cir. 2006). Soler, M., Shoenberg, D., & Schindler, M. (2009). Juvenile justice: Lessons for a new era. Georgetown Journal on Poverty Law & Policy, 16, 483–541. Stanford v. Kentucky, 492 U.S. 361 (1989). State v. Newstrom, 371 N.W.2d 525 (Minn. 1985). State Children’s Health Insurance Program of 1997, 42 U.S.C. 1397aa et seq. (2009).

91

Sterling, R. W. (2009). The role of juvenile defense counsel in delinquency court. Washington, DC: National Juvenile Defender Center. Thompson v. Oklahoma, 487 U.S. 815 (1988). Torbet, P., Gable, R., Hurst, H., Montgomery, I., Szymanski, L., & Thomas, D. (1996). State responses to serious and violent juvenile crime: Research report. U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Trammel v. United States, 445 U.S. 40 (1980). Troxell v. Granville, 530 U.S. 57 (2000). United Nations Convention on the Rights of the Child, November 20, 1989. United Nations Treaty Series Vol. 1557. Weithorn, L. (2005). Envisioning second-order change in American’s responses to troubled and troublesome youth. Hofstra Law Review, 33, 1305–1505. Wisconsin v. Yoder, 406 U.S. 205 (1972). Woodhouse, B. B. (2001). Children’s Rights.InS. O. White (Ed.), Youth and justice. New York, NY: Plenum Press. Available at SSRN: http://ssrn.com /abstract=234180 or doi:10.2139/ssrn.234180 Woolard, J. (2005). Juveniles within adult correctional settings: Legal pathways and developmental considerations. International Journal of Forensic Mental Health, 4(1), 18. Youngberg v. Romeo, 457 U.S. 307 (1982).

Juvenile Justice: Advancing Research, Policy, and Practice Edited by Francine T. Sherman and Francine H. Jacobs Copyright © 2011 John Wiley & Sons, Inc.

CHAPTER

5

A Vision for the American Juvenile Justice System The Positive Youth Development Perspective R I C H A R D M. L E R N E R , M I C H A E L D. W I A T R O W S K I , M E G A N K I E L Y M U E L L E R , C H R I S T O P H E R M. N A P O L I T A N O , K R I S T I N A L. S C H M I D , A N D A N I T A P R I T C H A R D

E

ach year in the United States, millions of adolescents become involved with the juvenile justice system (see Steinberg, 2008a). For some youth, this involvement begins and ends with a warning; they are not taken into custody and do not formally enter the system. Other youth are indeed taken into custody one or more times, and for some of these youth, there may be eventual incarceration in the adult criminal justice system. Although the treatment of youth within the juvenile justice system is generally dictated by the nature and seriousness of the offense and the prior involvement of youth with the system, it is also influenced by the extant conception of these youth (Steinberg, 2008b; Woolard & Scott, 2009) and, perhaps more fundamentally, by whether there exists a developmental conception of youth within the system (Scott & Steinberg, 2008). Traditionally, a developmental perspective has been absent within the juvenile justice system (Schwartz, 2003; Scott & Steinberg,



2008; Steinberg, 2008b), especially a developmental perspective informed by what we discuss later in the chapter as contemporary and cutting-edge models of development. Such models emphasize that mutually influential relations between the developing person and his/her complex (multilevel) ecology constitute the basic process of human development (Lerner, 2006; Overton, 2006, 2010). Moreover, young people, whether involved in the juvenile justice system or not, have been seen through a lens that regards healthy or positive adolescent development as being reflected by the absence of problems (Lerner, 2007). The assumption guiding this general view of youth is that adolescence is (because of biology) an inevitable period of “storm and stress” and, as such, a time when youth are both dangerous to others and to themselves (Anthony, 1969; Freud, 1969; Hall, 1904). There has been, then, a purported universal, biologically based shortcoming—a deficit—in their behavior and development. This nature (or nativist) deficit conception aligns with conceptions of system-involved youth that reflect ideas that transgressing adolescents need to be protected from themselves and from harming society (Steinberg, 2008b). As noted later in

The preparation of this chapter was supported in part by grants from the National 4-H Council, the John Templeton Foundation, and the Thrive Foundation for Youth.

92

A Vision for the American Juvenile Justice System: The Positive Youth Development Perspective

the chapter, these ideas were linked in the mid to late 1990s to the “superpredator” depiction of young people in the system and to adjudicating teenagers as adults. This deficit view of youth may have been a motivating factor in the separation of juveniles from treatment within the adult criminal justice system and the creation of the American juvenile justice system in 1899. Schwartz (2003) has suggested that this deficit view may have been a conceptually problematic but, nonetheless, somewhat effective way to protect children from “socialization” by adult criminals. Nevertheless, the deficit lens about adolescent development is based on an erroneous understanding of biological development, ignorance of extant data about adolescence, and a misunderstanding about the nature and strengths of youth development. Accordingly, the purpose of this chapter is to describe the nature and problems of the contemporary juvenile justice system that arise as a consequence of the counterfactual conception of adolescence that has framed the treatment of youth within the juvenile justice system (Schwartz, 2003; Steinberg, 2008a, 2008b). We place contemporary views about youth within the context of the history of the conceptions of young people that have been used within the juvenile justice system. In turn, building on recent calls for adopting a developmental perspective on juvenile justice (Scott & Steinberg, 2008; Steinberg, 2008b; Woolard & Scott, 2009), we provide a lens for viewing youth development: the positive youth development (PYD) perspective (Lerner, 2005, 2009). We believe that the PYD perspective capitalizes appropriately on contemporary theory and research on adolescent development and, as such, has profound implications for the transformation of juvenile justice policy and programs.

93

JUVENILE JUSTICE AND VIEWS OF YOUTH BEHAVIOR AND DEVELOPMENT: PAST AND CURRENT PERSPECTIVES The United States created the concept of juvenile justice based on an idea that has developed slowly over the past 200 years— that is, that youth are socially and developmentally not as fully responsible for their behavior as are adults before the law (Woolard & Scott, 2009). With the onset of Andrew Jackson’s presidency (1829–1837), penitentiaries were created to reform and rehabilitate adult and juvenile criminals alike rather than to punish them, as did prisons (Rothman, 1971). Following this model of rehabilitation, reformers soon sought to remove children from the presence of adults and provide a different place for them in the justice system. During this time, the first juvenile houses of refuge were established, and attempts were made to treat children accused and convicted of criminal offenses differently from adults (Dean & Repucci, 1974; Fox, 1970). With the creation of the first reformatories in the 1830s until the creation of the first juvenile court in Illinois in 1899, various approaches were taken for the care and treatment of children in the custody of the law. Public and private institutions attempted to mimic idealized visions of families or provide pastoral settings outside the “corruption” of the cities. Order, discipline, and hard work were the vision for the care of delinquent youth. However, these initiatives were imperfect experiments, and periodic investigations revealed that children in the court-ordered care of adults were typically treated poorly and harshly—a situation that some might argue continues to exist today. In the late 19th century, with the emergence of the field of social work and new ideas

94

FRAMING

regarding the causes of delinquency, the juvenile court evolved as a legal and social institution. The moral crusaders of this period had the view that children in trouble with the law were the product of flawed social environments (Platt, 1969). The settlement house idea was imported from England, and community centers were created as a place to bring some order to the slums and to solve the problems of overcrowding, labor exploitation, alcoholism, public health failure, and the myriad of related problems (Addams, 1910). These problems were viewed as social pathologies reflecting the emergent disease theory of medicine. Social work emerged as an area of professional specialization that sought to ameliorate the conditions that were thought to cause crime and delinquency. In 1899, Illinois became the first state to establish a statutory basis for juvenile courts, with most states following soon thereafter. The juvenile court developed a structure and language that differentiated it from the adult justice system. It was designed to be therapeutic and not punitive and, in theory, it was the antithesis of the adult criminal justice system. The medical model was adapted and applied to the treatment of social problems; this language of “treatment” became commonplace in dealing with juvenile delinquents (Smith, 1911). Certainly, this approach was more benign than the placement of juveniles in the adult system. Nevertheless, many of the reforms were often implemented poorly, and the treatment of juveniles in reform schools began to resemble the treatment of adults in minimum and medium security prisons (Feld, 1999). By the mid-1960s, however, events occurred in both the legal system and in academe to change the landscape of juvenile justice law and the treatment of juvenile offenders. Scott and Steinberg (2008) note

THE

ISSUES

that this conceptual landscape had remained largely unchanged throughout the first half of the 20th century. In regard to the legal system, the President’s Commission on Law Enforcement and the Administration of Justice (1967) provided a comprehensive examination of how both adult and juvenile justice were administered in the United States, as questions were emerging about whether the system protected the legal rights of juveniles and whether the actions of the juvenile justice system were in fact benign. In 1967, the Supreme Court case In re Gault challenged the historically informal court proceedings typical of juvenile cases (Scott & Steinberg, 2008), when Gerald Gault, a 15-year-old youth, was adjudicated in regard to making an obscene telephone call (see Schwartz, 2003, for a discussion of the impact of the Gault decision). He had been sentenced to a juvenile facility that was the equivalent of a medium security prison for the remainder of the time he was a juvenile. This case was the first to provide juveniles with the basic constitutional protections afforded to adults. In regard to academic events, Hirschi’s (1969) social control theory of delinquency used what may be termed sociogenic, or social mold (Elder, 1998) ideas (about socialization and social learning) to account for the advent of delinquency in a young person’s behavioral repertoire. From the standards of contemporary developmental theory, which we have already noted are linked to relational, systems notions of mutually influential exchanges between developing individuals and their complex (multilevel) and changing contexts, Hirschi’s theory reflects an outdated, split conception of the causes of behavior and development in the course of human life (Lerner, 2006; Overton, 2006, 2010). Simply, Hirschi’s model (and others like it, e.g., Hirschi & Gottfredson, 1980) is based on a

A Vision for the American Juvenile Justice System: The Positive Youth Development Perspective

counterfactual separation of organism and ecological developmental processes (Overton, 2006). Nevertheless, at the time of its presentation, the model of Hirschi was within the mainstream of social and behavioral science, which adhered to such Cartesian, split conceptions (Overton, 2010). Although Hirschi’s views about the bases of delinquency issues evolved (Hirschi & Gottfredson, 1980), his work nevertheless continued to reflect the split notion of human functioning that is today seen as inadequate within developmental science (Lerner, 2006; Overton, 2010). Nevertheless, at the time, his work was certainly useful in eliciting other discussions of the defining characteristics of delinquent youth and the source of these characteristics. Historically, then, Hirschi’s work was a precursor of ideas about the nature of the development of delinquency. In addition, his work provided a basis for discussions in the literature of whether the characteristics of treatment in juvenile institutions provided a good fit with the attributes of delinquent youth. In addition Wolfgang, Figlio, and Sellin (1972), examined the offenses of a cohort of youth born in Philadelphia in 1944 and found that involvement with the justice system among these youth was common; almost half of the youth had at least one contact. A progressively smaller number of youth, about 6%, accounted for almost half of the offenses. The juvenile justice system apparently had little impact on the behavior of these youth. From this work, the idea of the chronic offender was born. During the 1980s it became clear that, generally, prisons and juvenile institutions had punishment and incarceration as their primary purpose, and, as a consequence, the goal of rehabilitation was significantly reduced. This shift reflects what has been repeated historical

95

variation between an emphasis on punishment and an emphasis on rehabilitation. The emphasis found within any particular period may reflect the larger zeitgeist pertinent to societal concern with issues of social order. By the 1980s, the idea of “Do the crime, do the time” was applied to juveniles who were now treated as the developmental equivalent of adults; these youth were incarcerated in the adult criminal justice system, although separated from adult prisoners until they themselves became adults (Redding, 2005). Moreover, many states revised their statutes allowing juveniles to be waived or transferred to the jurisdiction of the adult criminal justice system. This treatment was reinforced by works such as that of Dilulio (1995), who coined the term juvenile superpredator to describe youth who were so primal, amoral, and violent in their behavior that he believed there was little society could do with them except to incarcerate them and “throw away the key,” again reflecting a theoretically atavistic and counterfactual Cartesian, split conception of the bases of human behavior and development (Overton, 2010). Although here one emphasized the nativist (nature) basis of youth behavior, this conception also had racial overtones, in that youth of color comprised the major proportion of children and adolescents then involved in the juvenile justice system (see also Bell & Mariscal, Chapter 6, this volume). Today, however, the laws that transfer juveniles to the punishments of the adult court are being questioned. A consistent finding is that those transferred to the adult system are more likely to reoffend than those who remain in the juvenile system (Lanza-Kaduce, Lane, Bishop, & Frazier, 2000). Indeed, because imprisonment undermines important developmental tasks, including social maturation, Scott and Steinberg (2008) argue that

96

FRAMING

many young offenders “are not headed for careers in crime—unless correctional interventions push them in that direction” (p. 25). Is there, then, a different model of youth that can recast their treatment within the juvenile justice system? Can this model be expected to reduce youth crime, and, in turn, promote positive individual and social behavior? We believe that the answer is yes. We discuss such a model next and then consider its implications for transforming the juvenile justice system.

THE CONTEMPORARY STUDY OF ADOLESCENCE AND THE EMERGENCE OF THE POSITIVE YOUTH DEVELOPMENT (PYD) PERSPECTIVE The scientific study of adolescent development was founded by Granville (G.) Stanley Hall (1844–1924) who, in 1904, published the first text on adolescence, a two-volume work entitled: Adolescence: Its Psychology and Its Relations to Physiology, Anthropology, Sociology, Sex, Crime, Religion, and Education. Hall launched the study of adolescence with a theory that saw the period as one marked by “storm and stress.” Hall believed that “ontogeny recapitulates phylogeny”: The changes that occur in a person’s life mirror the changes that occurred in the evolution of the human species. (This view is also called the theory of recapitulation.) Human evolution, he believed, involved changes that moved humans from being beastlike to being civilized. Adolescence corresponds to the period in evolution when humans underwent this change. Therefore, adolescence is a time of overcoming one’s beastlike impulses. Hall’s (1904) conception gave birth to what we noted earlier is a nativist, deficit model of

THE

ISSUES

adolescence. Predicated on a split notion that separates the nature and nurture sources of behavior and development, Hall believed that the biological- or evolutionary-based “nature” of human development gave rise necessarily to storm and stress during the adolescent period; there was, then, a biologically based deficit in the ability of youth to manifest overall civilized, serene, and stress-free behavior. Few scientists believed the specifics of Hall’s theory of recapitulation. However, his prominence in American psychology did influence the general conception that scientists—and society—had of adolescence as a time of upheaval and stress. Other scholars studying adolescent development adopted, in their theories, Hall’s idea that adolescence was a necessarily stressful period. For example, Anna Freud (1969) viewed adolescence as a universal period of developmental disturbance that involved upheavals in drive states, in family and peer relationships, in ego defenses, and in attitudes and values. Similarly, Erik Erikson (1968) spoke of adolescents as enmeshed in an identity crisis. In short, scientists defined young people as “at risk” for behaving in uncivilized or problematic ways and therefore as being dangerous to themselves and to others. For much of the 20th century, most writing and research about adolescence was based on this deficit conception of young people. This language is mirrored in the “risk” factors for adolescents offered by the Office of Juvenile Justice and Delinquency Prevention in their comprehensive strategy. The failure to negotiate adolescence allegedly created “deficits.” Typically, these deficit models of the characteristics of adolescence were predicated on biologically reductionist models of genetic or maturational determination (e.g., Erikson, 1968), and resulted in descriptions of youth as

A Vision for the American Juvenile Justice System: The Positive Youth Development Perspective

“broken” or in danger of becoming broken (Benson, Scales, Hamilton, & Sesma, 2006), as both dangerous and endangered (Anthony, 1969), or as “problems to be managed” (Roth & Brooks-Gunn, 2003). For instance, Anthony (1969) noted that adolescents were “lost,” that is, unable to find a positive place for themselves in society and, as such, they were both “dangerous,” in that they did not behave in manners supporting societal institutions or the social order, and “endangered,” in that they were acting in manners that, by failing to support society, would in fact harm the viability of the very institutions that nurtured and protected them. Similarly, Anna Freud (1969) noted that the inevitable biological changes of puberty resulted in adolescents moving strongly away from (indeed even rejecting) parental attitudes and values and, in turn, adopting what she specified were the antithetical views of the peer group. As a consequence of the prevalence of these deficit conceptions, if positive development was discussed in the adolescent development literature—at least prior to the 1990s—it was implicitly or explicitly regarded as the absence of negative or undesirable behaviors (Benson et al., 2006). A youth who was seen as manifesting behavior indicative of positive development was depicted as someone who was not taking drugs or using alcohol, not engaging in unsafe sex, and not participating in crime or violence. However, by the late 1990s and early 2000s, developmental science began to give increasingly greater attention to a new, strength-based conception of adolescence labeled the positive youth development (PYD) perspective (e.g., Damon, 2004; Larson, 2000; Lerner, 2004, 2007; Lerner & Steinberg, 2009). The emergence of this view of adolescence was linked to biology and comparative psychology.

97

Origins of the PYD Perspective The roots of the PYD perspective are found in the work of comparative psychologists (e.g., Gottlieb, Wahlsten, & Lickliter, 2006; Schneirla, 1957) and biologists (e.g., Novikoff, 1945a, 1945b; von Bertalanffy, 1933) who had been studying the plasticity of developmental processes that arose from the “fusion” (Tobach & Greenberg, 1984) of biological and contextual levels of organization. The ideas of fusion and of plasticity derive from what we have noted earlier in the chapter is the contemporary, cutting-edge focus of developmental theory on the relational developmental system, that is, on the mutually influential relations between the developing individual and his/her ecology (Lerner, 2006; Overton, 2006, 2010). These relations involve links between the neurological (e.g., brain) and psychological (e.g., cognitive, emotional, and motivational) facets of the person and the features of his/her natural and designed ecology (e.g., the family, school, and the institutions of civil society), the physical setting, and the historical context. Given that history (temporality) is an “arrow” that cuts through all levels that are integrated (“fused”) within the relational, developmental system, there is always a potential for systematic change (“plasticity”) in the behavior and development of the individual. Although these ideas about the importance of multiple levels of organization (those within the individual, such as physiology or cognition and those in the ecology, such as the family, educational institutions, and historical events) together acting to shape the nature and positive or negative direction of development across life arose in the study of biology and of nonhuman species (e.g., Gottlieb et al., 2006; Tobach & Schneirla, 1968), they began to impact the human developmental sciences in the 1970s (Cairns & Cairns, 2006; Gottlieb et al.,

98

FRAMING

2006; Lerner, 2002, 2006; Overton, 2006). Examples are the theoretical papers by Overton (1973) and by Lerner (1978) that discussed the nature–nurture controversy (i.e., the debate about whether the source of development was to be found in biological or environmental influences or in some combination of the two sets of influences). These authors argued that the debate could be resolved by taking an integrative, relational–developmental systems theoretical perspective about nature (e.g., genetic) and nurture (e.g., socialization, educational) influences on human development. As we will explain in more detail below, these discussions about the systemic relations among variables from all levels of organization involving organisms (individuals) and their physical and social world have resulted in the last several decades in both the elaboration of what we have already noted to be relational developmental systems theories of human development (Overton, 2010) and, in turn, on a strength-based view of adolescence. As we shall note, if the developmental system is plastic, then a fundamental strength of any facet of the system—the individual, for instance—is that there is some potential for change in behavior across life. Therefore, given the presence of at least some plasticity across life, what one may see in a person’s behavior at one point in his or her life is not what one might necessarily see at a subsequent point, if one were to change the relations within the developmental system. Plasticity means, then, that changes in the system could be linked to the enhancement or improvement in behavior (or, if changes in the system of relations are not supportive of positive growth, then there may of course be negative changes in behavior; a system that is open, or plastic, in regard to changes for the better is also open to changes for the worse). Today, developmental science includes a range of diverse instantiations of developmental

THE

ISSUES

systems theories, ideas that are applied to individuals across the life span and to adolescents in particular (e.g., see Brandtst€adter, 2006; Bronfenbrenner & Morris, 2006; Magnusson & Stattin, 2006; Rathunde & Csikszentmihalyi, 2006; and see Lerner, 2006, and Lerner & Steinberg, 2009, for other examples). However, all instances of these models share several core ideas, which we now discuss. Defining Features of Developmental Systems Theories As we have noted already, developmental systems theories have arisen in response to conceptions of development that split apart the variables (e.g., biological and social) and levels of organization (e.g., the individual, the institutions of society, history) that comprise the ecology of human life (Bronfenbrenner & Morris, 2006; Overton, 2010). Prior to the emergence of developmental systems theories, the study of human development and, indeed, the social and behavioral sciences more generally, were dominated by conceptions framed by modern, Cartesian thinking that reduced (or split off) the complexity of the system of influences involved in human life (ranging from the inner biological to the outer physical and historical) into one variable that was “real” (e.g., a gene, socialization, or social control); other variables were regarded as epiphenomenal or derivative. Developmental systems theories “reject all splits,” and constitute an instance of postmodern thinking that views the bases (the causes) of human behavior as associated with the configuration of relations across all levels of organization within the human development system, as they exist within a specific period of time (Overton, 2006). Accordingly, within all developmental systems theories the concept of developmental

A Vision for the American Juvenile Justice System: The Positive Youth Development Perspective

regulation indicates that the character (the form or pace) of the course of development (i.e., the regulation of development) involves mutually influential relations among variables from the levels of the system, and not one variable from one level (e.g., a gene from the biological level of organization) producing change in other variables (or levels). There is, then, a bidirectional influence among levels, represented in general as Level 1 ! Level 2. When these developmental regulations involve relations between individuals and their contexts, the relation may be represented as individual ! context relations. In addition, when these developmental regulations between individuals and contexts benefit both components of the relation, when the relations are salutary for both the person and his/her setting, then adaptive developmental regulations exist. For instance, when the individual contributes to the institutions of civil society (e.g., by voting or by becoming civically engaged more generally) that, in turn, afford the person the opportunity to pursue his/her individual talents and positive interests, then an adaptive developmental regulation would exist (Lerner, 2004). We have noted that because of the integration of temporality (history—or the continuous changes associated with the “arrow of time”) within the developmental system, the developmental system is characterized by the potential for plasticity in individual ! context relations. This plasticity allows an optimistic approach to the study of human development. If developmental science can find combinations of individual and context that can capitalize on plasticity and change to better the course (the trajectory) of behavior, then all individuals have some chance for improvement in their behavior across life. The combinations of individuals and settings that could result in positive development

99

constitute a virtually open set. There may be as many as 70 trillion potential human genotypes (a genotype is the set of genes that are received at conception) and—in the development of an individual (a phenotype)—each genotype may be coupled across life with an even larger number of social experiences, for example, different families, peer groups, neighborhoods, social policies, physical ecological conditions, and historical events (Hirsch, 2004). Therefore, from a developmental systems perspective, the diversity of people—the specific life paths they take and the specific outcomes of their development—becomes a prime focus for developmental research and application (Lerner, 2004; Spencer, 2006). Because of plasticity, all people possess a fundamental strength—the capacity to change—and, because of diversity, all people have an individual pathway through life that can, if conditions of person and context are adequately aligned, result in more positive behavior (Benson et al., 2006). Accordingly, ideas that seek to characterize all individuals or purported subgroups of individuals (e.g., “predator juveniles”) as the same and as not having any potential for positive change are egregiously flawed. Such ideas reflect counterfactual assertions about the nature of human development and are predicated on obsolete, split ideas that ignore the plastic and diverse character of human development. It is in the linkage between the ideas of plasticity and diversity that a basis exists for the extension of developmental systems thinking to the field of adolescence, and for the field of adolescence to serve as a “testing ground” for ideas associated with developmental systems theory. This synergy has had at least one key outcome, the forging of a new, strength-based vision of and vocabulary for the nature of adolescent development. In short, the plasticity–diversity linkage within

100

FRAMING

developmental systems theory and method has provided the basis for the formulation of the PYD perspective. Components of the PYD Perspective Beginning in the early 1990s, and burgeoning in the first half-decade of the 21st century, a new vision and vocabulary for discussing young people has emerged. These innovations were framed by the developmental systems theories that were engaging the interest of developmental scientists. Moreover, these innovations were propelled by the increasingly collaborative contributions of researchers focused on the second decade of life (e.g., Benson et al., 2006; Damon, 2004; Lerner, 2004), practitioners in the field of youth development (e.g., Floyd & McKenna, 2003; Pittman, Irby, & Ferber, 2001), and policy makers concerned with improving the life chances of diverse youth and their families (e.g., Cummings, 2003; Gore, 2003). These interests converged in the formulation of a set of ideas that enabled youth to be viewed as resources to be developed, and not as problems to be managed (Roth & BrooksGunn, 2003). These ideas may be discussed in regard to two key hypotheses. Each

THE

ISSUES

hypothesis is associated with two subsidiary hypotheses. The first hypothesis pertains to the measurement of PYD. The second focuses on the relations between individuals and contexts that, within developmental systems models, provide the basis of human development. Hypothesis 1: PYD Is Comprised of Five Cs Based on both the experiences of practitioners and reviews of the adolescent development literature (Eccles & Gootman, 2002; Lerner, 2004; Roth & Brooks-Gunn, 2003), “Five Cs”—Competence, Confidence, Connection, Character, and Caring—were hypothesized as a way of conceptualizing PYD (and of integrating all the separate indicators of it, such as academic achievement or self-esteem). The definitions of these Cs are presented in Table 5.1. These Five Cs were linked to the positive outcomes of youth development programs reported by Roth and Brooks-Gunn (2003). In addition, these “Cs” are prominent terms used by practitioners, adolescents involved in youth development programs, and the parents of these adolescents in describing the characteristics of a “thriving youth” (King et al., 2005).

Table 5.1. Definitions of the Five Cs of Positive Youth Development Competence. Positive view of one’s actions in domain-specific areas, including social, academic, cognitive, and vocational. Social competence pertains to interpersonal skills (e.g., conflict resolution). Cognitive competence pertains to cognitive abilities (e.g., decision making). School grades, attendance, and test scores are part of academic competence. Vocational competence involves work habits and career choice explorations and entrepreneurship. Confidence. An internal sense of overall positive self-worth and self-efficacy; one’s global self-regard, as opposed to domain-specific beliefs. Connection. Positive bonds with people and institutions that are reflected in bidirectional exchanges between the individual and peers, family, school, and community in which all parties contribute to the relationship. Character. Respect for societal and cultural rules, possession of standards for correct behaviors, a sense of right and wrong (morality), and integrity. Caring (or Compassion). A sense of sympathy and empathy for others. Sources: Lerner, 2004; Lerner et al., 2005; Roth and Brooks-Gunn, 2003.

A Vision for the American Juvenile Justice System: The Positive Youth Development Perspective

Hypothesis 1A: Contribution is the “Sixth C”: A hypothesis subsidiary to the postulation of the “Five Cs” as a means to measure (operationalize) PYD is that when a young person manifests the Cs across time (when the youth is thriving), he or she will be on a life trajectory toward an “idealized adulthood” (Csikszentmihalyi & Rathunde, 1998; Rathunde & Csikszentmihalyi, 2006). Theoretically, an ideal adult life is marked by integrated and mutually reinforcing contributions to self (e.g., maintaining one’s health and one’s ability therefore to remain an active agent in one’s own development) and to family, community, and the institutions of civil society (e.g., families, neighborhoods, schools, religious groups, etc.; Elshtain, 1999; Lerner, 2004). In other words, contribution is conceived of as giving (being generous) to self and others. The contributing person keeps herself healthy and fit, so as not to be an unnecessary liability to or an unnecessary user of the resources of others and, as well, helps family members without any coercion, assists neighbors without any compensation to do so, and helps keep the institutions of civil society strong by, for instance, volunteering to help others (e.g., through food or clothing drives) and acting to support the institutions of democracy (e.g., by working to enhance voter registration, by supporting political debate, and by voting). An adult engaging in such integrated contributions is a person manifesting adaptive developmental regulations (Brandtst€adter, 2006). Hypothesis 1B: PYD and risk/problem behaviors are inversely related: A second

101

subsidiary hypothesis to the one postulating the Five Cs is that there should be an inverse relation across development between PYD (e.g., the Five Cs) and behaviors indicative of risk behaviors or internalizing and externalizing problems (e.g., delinquency, substance use, depression, aggression). That is, this hypothesis suggests that as evidence for positive behavior increases, there should be fewer indications of problematic behaviors. Simply, the idea is that increases in good things are associated with decreases in what is bad. This idea was forwarded in particular by Pittman and her colleagues (e.g., Pittman et al., 2001) in regard to applications of developmental science to policies and programs. In essence, the hypothesis is that the best means to prevent problems associated with adolescent behavior and development (e.g., depression, aggression, drug use and abuse, or unsafe sexual behavior) is to promote positive development. The status of empirical support for Hypothesis 1: Findings from a national longitudinal investigation, the 4-H Study of Positive Youth Development (Lerner et al., 2005), support these hypotheses. The study, which currently includes about 7,000 youth from 41 states, involves longitudinal assessment of adolescents beginning in Grade 5 (at about age 10) and is currently designed to follow youth through Grade 12. The study provides evidence for the existence of the Five Cs of PYD, for the existence of the “Sixth C” of Contribution, and for positive relations among these

102

FRAMING

Cs (Lerner et al., 2005). Indeed, PYD in an earlier grade predicts Contribution in subsequent grades (e.g., Jelicic, Bobek, Phelps, J. V. Lerner, & Lerner, 2007). Similarly, findings from the 4-H Study show that there are inverse relations between the Cs and the risk/problem behaviors discussed above (Jelicic et al., 2007), although this relationship is more nuanced than originally hypothesized. For example, Phelps et al. (2007) and Zimmerman, Phelps, and Lerner (2008) found that PYD and risk/problem behaviors follow different trajectories over time; that is, the patterns of change associated with these outcomes differ among individuals. Whereas some youth show inverse relations between trajectories of PYD and risk/problem behaviors, other youth show increases in both dimensions and still others show decreases in both. These findings, that youth have diverse combinations of trajectories of positive and problematic behaviors, indicate that both prevention and promotion efforts must be pursued in terms of the policy and programs directed at youth. For instance, in regard to the juvenile justice system, these findings indicate that even among youth who show a history of risk/ problem behaviors, including (within the 4-H Study data set) bullying, delinquency, or substance use, there may be substantial evidence of PYD and, as well, Contribution. Accordingly, there may be strengths—and the basis for positive change—among even those youth who show trajectories of marked risk/problem behaviors.

THE

ISSUES

Hypothesis 2: Youth-Context Alignment Promotes PYD Based on the idea that the potential for systematic intraindividual change across life (i.e., for plasticity) represents a fundamental strength of human development, the hypothesis was generated that, if the strengths of youth are aligned with resources for healthy growth present in the key contexts of adolescent development—the home, the school, and the community—then enhancements in positive functioning at any one point in time (i.e., well-being; Lerner, 2004) may occur. In turn, the systematic promotion of positive development will occur across time (i.e., thriving; e.g., Lerner, 2004; Lerner et al., 2005). Hypothesis 2A: Contextual alignment involves marshaling development assets: A key subsidiary hypothesis to the notion that aligning individual strengths and contextual resources for healthy development is that there exist, across the key settings of youth development (i.e., families, schools, and communities), at least some supports for the promotion of PYD. Termed developmental assets (Benson et al., 2006), these resources constitute the social and ecological “nutrients” for the growth of healthy youth. Hypothesis 2B: Community-based programs constitute key developmental assets: There is broad agreement among researchers and practitioners in the youth development field that the concept of developmental assets is important for understanding what needs to be marshaled in homes, classrooms, and community-based programs to foster PYD (Benson et al., 2006; Lerner, 2007). In fact, a key impetus for the interest in the PYD perspective among both researchers and

A Vision for the American Juvenile Justice System: The Positive Youth Development Perspective

youth program practitioners, and thus a basis for the collaborations that exist among members of these two communities, lies in ascertaining the nature of the resources for positive development that are present in youth programs, for example, in the literally hundreds of thousands of after-school programs delivered either by large, national organizations, such as 4-H, Boys and Girls Clubs, Scouting, Big Brothers/Big Sisters, YMCA, or Girls, Inc., or by local organizations (see Dym, Gerena, Tangvik, & Bartlett, Chapter 19, this volume). The focus on youth programs is important not only for practitioners in the field of youth development, however. In addition, the interest in exploring youth development programs as a source of developmental assets for youth derives from theoretical interest in the role of the macrolevel systems effects of the ecology of human development on the course of healthy change in adolescence (Bronfenbrenner & Morris, 2006); interest derives as well from policy makers and advocates, who believe that, at this point in the history of the United States, community-level efforts are needed to promote positive development among youth (e.g., Cummings, 2003; Gore, 2003; Pittman, et al., 2001). The status of empirical support for Hypothesis 2: Once again, findings from the 4-H Study of Positive Youth Development lend empirical support to expectations associated with Hypothesis 2. For example, Theokas and Lerner (2006), and Urban, Lewin-Bizan, and Lerner (2009) found that greater ecological assets (e.g., mentors,

103

opportunities for learning and recreation, etc.) were positively related to PYD and negatively related to problem/risk behaviors, such as depression. In addition, in all settings involving youth (families, schools, and the community) the assets most associated with high levels of PYD and Contribution and with low levels of risk and problem behaviors were people: large quantities of quality time with parents; access to a competent, caring teacher; and positive and sustained relations with a mentor or significant other. Furthermore, Zarrett et al. (2009) explored the association between patterns of involvement in community-based programs and PYD. Findings from this study indicate that participation in youth development programs— marked by the presence of a positive and sustained relationship with a mentor; life skills building activities; and opportunities for youth participation in, and leadership of, valued family, school, and community activities—was related to PYD and youth contribution, even after controlling for the total time youth spent in other out-of-school time activities, such as sports (Zarrett, et al. 2009). Possible Implications for Juvenile Justice There may be several implications of the PYD perspective for juvenile justice. First, it is clear that people can make a difference in the lives of youth involved in different developmental trajectories. Therefore, programs that involve the presence of positive adults in the lives of youth (e.g., mentoring programs) may be useful. Second, it may be that strengths

104

FRAMING

(i.e., the potential for some plasticity) exist even among youth marked by considerable engagement in risk/problem behaviors; as such, there may be merit in searching for combinations of individual attributes and contextual resources that can capitalize on these strengths to promote more positive development among such youth (see Butts, Bazemore, & Meroe, 2010). Especially if a young person spends a significant amount of time with a caring, committed, and capable adult who is inculcating life skills and youth participation and leadership in positive, valued activities, then it may be that both PYD and Contribution may be increased and risk/problem behaviors may be decreased. Although the necessary data to support these implications remain to be collected, the evidence in support of the PYD perspective suggests the potential importance of such research. Conclusions About the PYD Perspective Replacing the deficit view of adolescence, the PYD perspective sees all adolescents as having strengths (by virtue of their potential for change). The perspective suggests that increases in well-being and thriving are possible for all youth through aligning the strengths of young people with the developmental assets present in their social and physical ecology. Although still at a preliminary stage of progress, there is growing empirical evidence that, with some important qualifications, the general concepts and main and subsidiary hypotheses of the PYD perspective find empirical support (Lerner, Phelps, Forman, & Bowers, 2009; Lerner, 2005, 2009). Given this evidence, it is useful to provide some concluding comments about the links between the PYD perspective and the innovations we believe need to be made in America’s juvenile justice system.

THE

ISSUES

TOWARD A PYD FRAMEWORK VISION FOR JUVENILE JUSTICE In light of the evidence from the 4-H Study, as well as from other research pertinent to the PYD perspective (see Lerner et al., 2009, for a review), it is clear that all youth have strengths and that, by aligning their strengths with resources for healthy development found in their homes, schools, and communities, the positive development of all young people may be enhanced. We support, then, Steinberg’s (2008b) call for adopting a developmental perspective in regard to juvenile justice, but would add that such adoption should involve a strengths-based formulation, such as the PYD perspective. As evident in other chapters in this volume (e.g., Schiraldi, Schindler, & Goliday, Chapter 20, this volume), it is both important and gratifying to note that such efforts are beginning to occur in jurisdictions across the country. As we have explained, using the PYD perspective in regard to juvenile justice policies and programs would encourage policy makers to view youth as assets to be enhanced instead of viewing youth within the juvenile justice system as “problems to be managed” (Roth & Brooks-Gunn, 2003). In turn, using the PYD perspective as a lens for specific program initiatives would add credence to the recommendations of Scott and Steinberg (2008), who suggest that programs that reflect the individual ! context relational system model framing the PYD perspective are especially effective (see Butts et al., 2010). For instance, they note that programs that strengthen social supports with adults and family members and programs that take a developmental systems approach (e.g., a multisystemic therapy program) may be particularly beneficial (Greenwood & Turner, Chapter 23, this volume).

A Vision for the American Juvenile Justice System: The Positive Youth Development Perspective

In sum, consistent with the work of Steinberg and colleagues (Scott & Steinberg, 2008; Steinberg, 2008a, 2008b; Woolard & Scott, 2009), we are proposing that juvenile justice and delinquency prevention be moved from a deficit and nondevelopmental model of youth to a model based on the positive youth development perspective. Although society will continue to demand accountability for the delinquent and criminal acts committed by youth, the goal of juvenile justice should be to promote and sustain positive development of youth.

REFERENCES Addams, J. (1910). Twenty years at Hull House; with autobiographical notes. New York, NY: MacMillan. Anthony, E. J. (1969). The reactions of adults to adolescents and their behavior. In G. Caplan & S. Lebovici (Eds.), Adolescence: Psychosocial perspectives (p. 77) New York, NY: Basic Books. Benson, P. L., Scales, P. C., Hamilton, S. F., & Semsa, A., Jr. (2006). Positive youth development: Theory, research, and applications. In R. M. Lerner (Ed.), Handbook of child psychology: Vol. 1. Theoretical models of human development (6th ed., pp. 894–941). Editors-in-chief: W. Damon & R. M. Lerner. Hoboken, NJ: Wiley. Brandtst€adter, J. (2006). Action perspectives on human development. In R. M. Lerner (Ed.), Handbook of child psychology: Vol. 1. Theoretical models of human development (6th ed., pp. 516–568). Editors-in-chief: W. Damon & R. M. Lerner. Hoboken, NJ: Wiley. Bronfenbrenner, U., & Morris, P. A. (2006). The bioecological model of human development. In R. M. Lerner (Ed.), Handbook of child psychology: Vol. 1. Theoretical models of human development (6th ed., pp. 793–828.) Editors-in-chief: W. Damon & R. M. Lerner. Hoboken, NJ: Wiley. Butts, J. A., Bazemore, G., & Meroe, S. A. (2010). Positive youth justice: Framing justice interventions using the concepts of positive youth development. Washington, DC: Coalition for Juvenile Justice. Cairns, R. B., & Cairns, B. (2006). The making of developmental psychology. In R. M. Lerner

105

(Ed.), Handbook of child psychology: Vol. 1. Theoretical models of human development (6th ed., pp. 89–165). Editors-in-chief: W. Damon & R. M. Lerner. Hoboken, NJ: Wiley. Csikszentmihalyi, M., & Rathunde, K. (1998). The development of the person: An experiential perspective on the ontogenesis of psychological complexity. In W. Damon (Series Ed.) & R. M. Lerner (Volume Ed.), Handbook of child psychology: Vol. 1. Theoretical models of human development (5th ed., 635–684). New York, NY: Wiley. Cummings, E. (2003). Foreword. In D. Wertlieb, F. Jacobs, & R. M. Lerner (Eds.), Handbook of applied developmental science: Promoting positive child, adolescent, and family development through research, policies, and programs: Vol. 3. Promoting positive youth and family development: Community systems, citizenship, and civil society (pp. ix–xi) Thousand Oaks, CA: Sage. Damon, W. (2004). What is positive youth development? Annals of the American Academy of Political and Social Science, 591, 13–24. Dean, C. W., & Reppucci, N. D. (1974). Juvenile corrections in institutions. In D. Glaser (Ed.), Handbook of criminology (pp. 75–92). Chicago, IL: Rand McNally. Dilulio, J. J. (1995). The coming of super-predators. Weekly Standard. Retrieved from www.mcsm.org /predator.html Eccles, J. S., & Gootman, J. A. (Eds.). (2002). Community programs to promote youth development/Committee on community-level programs for youth. Washington DC: National Academy Press. Elder, G. H., Jr. (1998). The life course and human development. In W. Damon (Series Ed.) & R. M. Lerner (Vol. Ed.), Handbook of child psychology: Vol. 1. Theoretical models of human development (5th ed., pp. 939–991). New York, NY: Wiley. Elshtain, J. B. (1999). A call to civil society. Society, 36(5), 11–19. Erikson, E. H. (1968). Identity, youth, and crisis. New York, NY: Norton. Feld, B. (1999). Bad kids: Race and the transformation of the juvenile court. New York, NY: Oxford University Press. Floyd, D. T., & McKenna, L. (2003). National youth serving organizations in the United States: Contributions to civil society. In R. M. Lerner, F. Jacobs, & D. Wertlieb (Eds.), Handbook of applied developmental science: Promoting positive child, adolescent, and family development through research, policies, and

106

FRAMING

programs: Vol. 3. Promoting positive youth and family development: Community systems, citizenship, and civil society (pp. 11–26). Thousand Oaks, CA: Sage. Fox, S. J. (1970). Juvenile justice reform: An historical perspective. Stanford Law Review, 22, 1187–1239. Freud, A. (1969). Adolescence as a developmental disturbance. In G. Caplan & S. Lebovici (Eds.), Adolescence (pp. 5–10). New York, NY: Basic Books. Gore, A. (2003). Foreword. In R. M. Lerner & P. L. Benson (Eds.), Developmental assets and asset-building communities: Implications for research, policy, and practice (pp. xi–xii) Norwell, MA: Kluwer. Gottlieb, G., Wahlsten, D., & Lickliter, R. (2006). The significance of biology for human development: A developmental psychobiological systems view. In R. M. Lerner (Ed.), Handbook of child psychology: Vol. 1. Theoretical models of human development (6th ed., pp. 210–257). Editors-in-chief: W. Damon & R. M. Lerner. Hoboken, NJ: Wiley. Hall, G. S. (1904). Adolescence: Its psychology and its relations to psychology, anthropology, sociology, sex, crime, religion, and education. New York, NY: Appleton. Hirsch, J. (2004). Uniqueness, diversity, similarity, repeatability, and heritability. In C. Garcia Coll, E. Bearer, & R. M. Lerner (Eds.), Nature and nurture: The complex interplay of genetic and environmental influences on human behavior and development (pp. 127–138). Mahwah, NJ: Erlbaum. Hirschi, T. (1969). Causes of delinquency. Berkeley and Los Angeles: University of California Press. Hirschi, T., & Gottfredson, M. (1980). Understanding crime. Beverly Hills, CA: Sage. In re Gault, 387 U.S. 1 (1967). Jelicic, H., Bobek, D., Phelps, E. D., Lerner, J. V., & Lerner, R. M. (2007). Using positive youth development to predict contribution and risk behaviors in early adolescence: Findings from the first two waves of the 4-H Study of Positive Youth Development. International Journal of Behavioral Development, 31(3), 263–273. King, P. E., Dowling, E. M., Mueller, R. A., White, K., Schultz, W., Osborn, P., . . . Scales, P. C. (2005). Thriving in Adolescence: The voices of youthserving practitioners, parents, and early and late adolescents. Journal of Early Adolescence, 25(1), 94–112. Lanza-Kaduce, L., Lane, J., Bishop, D. M., & Frazier, C. E. (2005). Juvenile offenders and adult felony recidivism: The impact. Journal of Criminal Justice, 28, 59–77.

THE

ISSUES

Larson, R. W. (2000). Towards a psychology of positive youth development.. American Psychologist, 55, 170–183. Lerner, J. V., Phelps, E., Forman, Y. E., & Bowers, E. (2009). Positive youth development. In R. M. Lerner & L. Steinberg (Eds.), Handbook of adolescent psychology (3rd ed., pp. 524–558). Hoboken, NJ: Wiley. Lerner, R. M. (1978). Nature, nurture, and dynamic interactionism. Human Development, 21, 1–20. Lerner, R. M. (2002). Concepts and theories of human development (3rd ed.). Mahwah, NJ: Erlbaum. Lerner, R. M. (2004). Liberty: Thriving and civic engagement among American youth. Thousand Oaks, CA: Sage. Lerner, R. M. (2005, September). Promoting positive youth development: Theoretical and empirical bases. White paper prepared for the Workshop on the Science of Adolescent Health and Development, National Research Council/Institute of Medicine. Washington, DC: National Academies of Science. Lerner, R. M. (2006). Developmental science, developmental systems, and contemporary theories. In R. M. Lerner (Ed.), Handbook of child psychology: Vol. 1: Theoretical models of human development. (6th ed., pp. 1–17). Editors-in-chief: W. Damon & R. M. Lerner.Hoboken, NJ: Wiley. Lerner, R. M. (2007). The good teen: Rescuing adolescents from the myths of the storm and stress years. New York, NY: Crown. Lerner, R. M. (2009) The positive youth development perspective: Theoretical and empirical bases of a strength-based approach to adolescent development. In C. R. Snyder and S. J. Lopez (Eds.), Oxford handbook of positive psychology (2nd ed., pp. 149– 163). Oxford, England: Oxford University Press. Lerner, R. M., Lerner, J. V., Almerigi, J., Theokas, C., Phelps, E., Gestsdottir, S., . . . von Eye, A. (2005). Positive youth development, participation in community youth development programs, and community contributions of fifth grade adolescents: Findings from the first wave of the 4-H Study of Positive Youth Development. Journal of Early Adolescence, 25(1), 17–71. Lerner, R. M., & Steinberg, L. (Eds.). (2009). Handbook of adolescent psychology (3rd ed.). Hoboken, NJ: Wiley. Magnusson, D., & Stattin, H. (2006). The person in context: A holistic-interactionistic approach. In R. M. Lerner & W. Damon (Eds.), Handbook of child psychology (6th ed., pp. 400–464). Hoboken, NJ: Wiley.

A Vision for the American Juvenile Justice System: The Positive Youth Development Perspective

Novikoff, A. B. (1945a). The concept of integrative levels and biology. Science, 101, 209–215. Novikoff, A. B. (1945b). Continuity and discontinuity in evolution. Science, 101, 405–406. Overton, W. F. (1973). On the assumptive base of the nature-nurture controversy: Additive versus interactive conceptions. Human Development, 16, 74–89. Overton, W. F. (2006). Developmental psychology: Philosophy, concepts, methodology. In R. M. Lerner (Ed.), Handbook of child psychology: Vol. 1. Theoretical models of human development (6th ed., pp. 18–88). Editors-in-chief: W. Damon & R. M. Lerner. Hoboken, NJ: Wiley. Overton, W. F. (2010). Life-span development: Concepts and issues. In R. M. Lerner (Ed-in-chief) & W. F. Overton (Vol. Ed.), The Handbook of Life-Span Development: Vol 1. Cognition, Biology, and Methods (pp. 1–29). Hoboken, NJ: Wiley. Phelps, E., Balsano, A., Fay, K., Peltz, J., Zimmerman, S., Lerner, R., M., & Lerner, J. V. (2007). Nuances in early adolescent development trajectories of positive and of problematic/risk behaviors: Findings from the 4-H Study of Positive Youth Development. Child and Adolescent Clinics of North America, 16(2), 473–496. Pittman, K., Irby, M., & Ferber, T. (2001). Unfinished business: Further reflections on a decade of promoting youth development. In P. L. Benson & K. J. Pittman (Eds.), Trends in youth development: Visions, realities and challenges (pp. 4–50). Norwell, MA: Kluwer. Platt, A. M. (1969). The child savers: The invention of delinquency. Chicago, IL, & London, England: University of Chicago Press. President’s Commission on Law Enforcement and Administration of Justice (1967). The Challenge of Crime in a Free Society. Washington, DC: U.S. Government Printing Office. Rathunde, K., & Csikszentmihalyi, M. (2006). The developing person: An experiential perspective. In R. M. Lerner (Ed.), Handbook of Child Psychology: Vol. 1. Theoretical models of human development (6th ed., pp. 465–515). Editors-in-chief: W. Damon & R. M. Lerner. Hoboken, NJ: Wiley. Redding, R. E. (2005). Adult punishment for juvenile offenders: Does it reduce crime? In N. Dowd, D. Singer, & R. F. Wilson (Eds.), Handbook on children, culture and violence (pp. 374–395). Thousand Oaks, CA: Sage.

107

Roth, J. L., & Brooks-Gunn, J. (2003). What exactly is a youth development program? Answers from research and practice. Applied Developmental Science, 7, 94–111. Rothman, D. J. (1971). The discovery of the asylum. Boston, MA: Little Brown. Schneirla, T. C. (1957). The concept of development in comparative psychology. In D. B. Harris (Ed.), The concept of development (pp. 78–108). Minneapolis: University of Minnesota. Schwartz, R. G. (2003). Juvenile justice and positive youth development. In F. Jacobs, D. Wertlieb, & R. M. Lerner (Eds.), Handbook of applied developmental science: Vol. 2. Enhancing the life chances of youth and families: Contributions of programs, policies, and service systems (pp. 421–443). Thousand Oaks, CA: Sage. Scott, E. S., & Steinberg, L. (2008). Adolescent development and the regulation of youth crime. Future of Children, 18, 15–33. Smith, G. S. (1911). Social pathology. New York, NY: Macmillan. Spencer, M. B. (2006). Phenomenological variant of ecological systems theory (PVEST): A human development synthesis applicable to diverse individuals and groups. In R. M. Lerner (Ed.), Handbook of child psychology: Vol. 1. Theoretical models of human development (6th ed., pp. 829–894). Editors-in-chief: W. Damon & R. M. Lerner. Hoboken, NJ: Wiley. Steinberg, L. (Ed.). (2008a). Juvenile justice. [Special issue.] Future of Children, 18(2). Steinberg, L. (2008b). Introducing the issue. Future of Children, 18(2), 3–14. Theokas, C., & Lerner, R. M. (2006). Observed ecological assets in families, schools, and neighborhoods:Conceptualization,measurementand relations with positive and negative developmental outcomes. Applied Developmental Science, 10(2), 61–74. Tobach, E., & Greenberg, G. (1984). The significance of T. C. Schneirla’s contribution to the concept of levels of integration. In G. Greenberg & E. Tobach (Eds.), Behavioral evolution and integrative levels (pp. 1–7). Hillsdale, NJ: Erlbaum. Tobach, E., & Schneirla, T. C. (1968). The biopsychology of social behavior of animals. In R. E. Cooke & S. Levin (Eds.), Biologic basis of pediatric practice (pp. 68–82). New York, NY: McGraw-Hill. Urban, J., Lewin-Bizan, S. & Lerner, R. M. (2009). The role of ecological context and activity involvement in youth developmental outcomes: Differential impacts of asset poor and asset rich neighborhoods.

108

FRAMING

Journal of Applied Developmental Psychology, 30(5), 601–614. von Bertalanffy, L. (1933). Modern theories of development. London, England: Oxford University Press. Wolfgang, M. E., Figlio, R. M., & Sellin, T. (1972). Delinquency in a birth cohort. Chicago, IL: University of Chicago Press. Woolard, J. L., & Scott, E. (2009). The legal regulation of adolescence. In. R. M. Lerner & L. Steinberg (Eds.), Handbook of adolescent psychology: Vol 2. Contextual influences on adolescent development (3rd ed., pp. 345–371). Hoboken, NJ: Wiley.

THE

ISSUES

Zarrett, N., Fay, K., Carrano, J., Li, Y., Phelps, E., & Lerner, R. M. (2009). More than child’s play: Variable- and pattern-centered approaches for examining effects of sports participation on youth development. Developmental Psychology, 45(2), 368–382. Zimmerman, S., Phelps, E., & Lerner, R. M. (2008). Positive and negative developmental trajectories in U.S. adolescents: Where the PYD perspective meets the deficit model. Research in Human Development, 5(3), 153–165.

Juvenile Justice: Advancing Research, Policy, and Practice Edited by Francine T. Sherman and Francine H. Jacobs Copyright © 2011 John Wiley & Sons, Inc.

S ECTION II

UNDERSTANDING INDIVIDUAL YOUTH

Juvenile Justice: Advancing Research, Policy, and Practice Edited by Francine T. Sherman and Francine H. Jacobs Copyright © 2011 John Wiley & Sons, Inc.

CHAPTER

6

Race, Ethnicity, and Ancestry in Juvenile Justice JAMES BELL

AND

RAQUEL MARISCAL

R

acial and ethnic disparities is one of the most intransigent and disturbing issues facing juvenile justice in the United States (Nellis & Richardson, 2010). While comprising approximately 38% of the population eligible for detention, the overrepresentation of youth of color in secure confinement has increased to almost 70% over the past decade (Mendel, 2009) (see Figure 6.1). These startling increases in disparities for youth of color occurred while arrest rates for serious and violent crimes declined by 45% (Nelson, 2008). While current data collection methods could be significantly improved, we know enough about the overrepresentation of youth

of color to be sufficiently alarmed. According to the most recent data, African American youth are treated more harshly at all stages of the juvenile justice system, resulting in a cumulative disadvantage. While only 16% of the African American youth population are of sufficient age for detention, they represent 28% of juvenile arrests, 37% of detained youth, and 58% of youth admitted to state adult prison (National Council on Crime and Delinquency, 2007; see Holsinger, Chapter 2, this volume). Although the number of cases contained in local and national data sets is a significant undercount, research reveals similar disparities for Latino youth. The National Center on

Figure 6.1 Increasing Overrepresentation of Youth of Color in Detention Centers 80 70

62 56

60 50

69

65

43

Youth of Color as a Percentage of Total U.S. Detention Population

40 30 20 10 0 1985

1995

1999

2003

2006

Sources: Census of Public and Private Juvenile Detention, Correctional and Shelter Facilities, 1985–1995; OJJDP Statistical Briefing Book, Census of Juveniles in Residential Placement Databook, 1999, 2003, and 2006.

111

112

UNDERSTANDING INDIVIDUAL YOUTH

Juvenile Justice analyzed 2005 data from the National Juvenile Court Data Archive and was able to provide only limited data on Latino youth because only 13 of 42 jurisdictions consistently reported ethnicity data. Nevertheless, the data accounted for approximately 63% of the nation’s Latino youth population. The data revealed, in order of rising disparity, that Latino youth were 4% more likely than White youth to be petitioned; 16% more likely than White youth to be adjudicated delinquent; 28% more likely than White youth to be detained; 41% more likely than White youth to receive an out-of-home placement; and 43% more likely than White youth to be waived to the adult system (Arya et al., 2009). Although no two juvenile justice systems are exactly the same, there are several decision points within the juvenile justice process at which the overrepresentation of youth of color is commonly measured (see Holsinger, Chapter 2, this volume). Some key decision points prior to judicial appearance include “cite and release,” arrest, diversion after arrest, referral to a detention facility, and admission to detention. At each key decision point, juvenile justice professionals exercise judgments about how the young person and his or her family should be handled. Monitoring these decision points, pursuant to federal policy, reveals that youth of color are funneled deeper into the system for behaviors similar to their White counterparts, when controlling for offenses (Nelson, 2008). For example, data reveal that White youth are more likely to be diverted from formal processing than are youth of color. Additionally, more youth of color are referred and admitted to detention than are their White counterparts for similar behavior (National Council on Crime and Delinquency, 2007). In this chapter, we examine major elements of disparities by race, ethnicity, and

ancestry in the juvenile justice system, and deconstruct its drivers in order to engage appropriate responses to the way justice is lived by children, families, and communities of color. We first provide an overview of the history and current thinking about racial and ethnic disparities in the juvenile justice system, beginning with the role federal policy has played defining this issue and a summary of the literature concerning the causes of disparities. We then review the historic treatment of youth of color in the U.S. juvenile justice system, demonstrating that current disparities in treatment draw from this historical legacy. Next, we discuss how contemporary policies that purport to be race neutral actually operate to disadvantage Black and Latino youth. Finally, we examine promising policies and practices for reducing racial and ethnic disparities, demonstrating that juvenile justice systems can operate with fairness and equity for all young people.

FRAMING THE DISPARITIES DISCUSSION The modern history of identifying and analyzing disparities has largely been defined by the Juvenile Justice and Delinquency Prevention Act ( JJDPA, 2002). Through the JJDPA and Office of Juvenile Justice and Delinquency Prevention (OJJDP) funded research and publications, the federal government has played a central role in defining the scope, reasons, and responses to race and ethnic disparities in the U.S. juvenile justice system (Pope & Leiber, 2005). Federal attention to this issue has broadened over the years, from focusing on confinement (disproportionate minority confinement, DMC) to assessing disparities at each phase of the system, or contact (disproportionate minority contact, DMC).

Race, Ethnicity, and Ancestry in Juvenile Justice

The earlier JJDPA of 1974 was designed to influence state juvenile justice policy by providing monetary incentives for compliance with federal mandates. Toward that end, it dictated two core requirements that states had to meet to receive funding: remove offenders from adult pretrial lockup and deinstitutionalize status offenders. In 1988 Congress amended the JJDPA, requiring each state to address the issue of disproportionate minority confinement in secure facilities, but the Act did not make this a core requirement. The 1992 reauthorization elevated this to a core requirement tied to future funding eligibility. In 2002, Congress amended the JJDPA once again, this time broadening the DMC core requirement. States were directed to address disproportionate contact of youth of color with the juvenile justice system, not just their confinement in secure detention (Bell & Ridolfi, 2008). This change from confinement to contact acknowledged that disparities exist at other stages of the juvenile justice system and broadened the required inquiry to all decision points, while arguably taking the focus off confinement, the most oppressive locus of disparities. While recognizing the presence of race and ethnic disparities at all stages of the juvenile justice process, our primary emphasis in this chapter is on confinement—the actions of policy makers that deprive youth of their liberty through confinement in secure facilities. As part of its effort to set policy addressing DMC, since 1993 OJJDP has funded state and federal research documenting the extent and nature of DMC and has provided tools to states seeking to address disparities. Under the JJDPA, states are required to address DMC by identifying the extent to which minority youth are confined, assessing the reasons for disproportionality, developing strategies to address the causes of disproportionality,

113

and evaluating the effectiveness of these strategies as they are implemented (Pope & Leiber, 2005). To support the shift in mandate from a focus on confinement to one on contact, the 2002 reauthorization of the JJDPA also shifted the methodology for determining overrepresentation of youth of color in the juvenile justice system from the Disproportionate Representation Index (DRI) to the Relative Rate Index (RRI). While the DRI compared the percentage of youth of color at a specific decision point with a percentage of the youth of color in the general population, the RRI compares the rates of youth of color’s contact with the juvenile justice system at a particular decision point with the corresponding percentage of White youth at the same decision point. In other words, the RRI does not take into account the presence of each group of youth in the population as a whole, but rather compares White youth and youth of color at each decision point through the youth’s contact with the juvenile justice system to the percentage of White youth and youth of color at the previous decision point (Ridolfi, 2004). While the RRI provides a more detailed analysis, focusing on decision points throughout the juvenile justice process (Moriearty, 2008), because the RRI no longer considers the population of White youth and youth of color as a whole, the results can understate the social significance of the disparity. In essence, the number loses some of its context. For a clearer picture of how youth of color are experiencing detention, the rates of overall detention among White youth and youth of color should be calculated in addition to the RRI. Regardless of the methodology, most of today’s data fail to disaggregate by ethnicity, which has the unfortunate consequence of classifying Latino youth as “White” or the

114

UNDERSTANDING INDIVIDUAL YOUTH

ever amorphous “Other.” This practice makes Latino youth invisible and significantly undercounts the levels of racial and ethnic disparities present in the juvenile justice system (Villarruel & Walker, 2002). Disproportionate minority confinement analysis has centered on a Black and White paradigm, suggesting to local jurisdictions they are “allowed” to address only the disparate treatment of one racial/ethnic group at a time and ignoring a massive demographic shift over the past decade, during which the number of Latino youth in this country has almost doubled (Pew Hispanic Center, 2007). Despite federal attention to race and ethnic disparities since the late 1980s, the problem persists, raising real questions about the effectiveness of federal leadership (Leiber, 2002). OJJDP’s oversight of state compliance with the DMC mandate has been inconsistent, with few states penalized for failures to comply; other states have documented disproportionality, but have failed to develop and implement remedial plans (Moriearty, 2008). Moreover, the JJDPA was last re-authorized in 2002, and its DMC provisions would benefit from amendments consistent with what has been learned in the field since that time (Nellis & Richardson, 2010). Finally, while the DMC mandate began in 1992, other federal youth policy has been inconsistent with that mandate. As this chapter shows, throughout the 1990s, while claiming concern for disproportionality through the DMC mandate, federally driven “get tough” policies such as drug-free zones and zero tolerance increased the disproportional representation of youth of color in the juvenile justice system. Explaining Disparities While the fact and extent of race and ethnic disparities through the juvenile justice system

are well established, there continues to be discussion about the cause. Two theories have been proposed over the years: differential offending and differential treatment (Bishop, 2005; Nellis & Richardson, 2010; Piquero, 2008). Differential offending considers race and ethnic disparities in the juvenile justice (and criminal justice) systems the result of different patterns and rates of offending among youth by race and ethnicity (Bishop, 2005). In contrast, differential treatment explains that disparities result from differences in the treatment of White youth and youth of color at each of the discretionary decision points within the juvenile justice system. Differential treatment, the view advanced by OJJDP (Tracy, 2005), is consistent with the way disparities increase as juveniles move deeper into the juvenile justice system. Research shows that racial differences become larger as juveniles move from arrest to detention, formal processing, out-of-home placement, and waiver into the adult system, experiencing the cumulative effect of justice system decisions (Piquero, 2008). While there may be a debate over which theory explains these disparities, it is undisputed that youth of color are present at each stage of the justice system in numbers disproportionate to their presence in the population, and these disparities increase as youth move further along the juvenile justice process (Piquero, 2008). Differential offending alone cannot explain the nature and extent of race and ethnic disparities that are welldocumented in the juvenile justice system. Studies have found that youth of color are more likely than their White counterparts to be arrested and referred by police for formal processing; be securely detained; receive harsher dispositions; and be transferred into the adult criminal justice system (see Bishop, 2005, for a review of the literature). Rates of out-of-home placement in secure facilities for

Race, Ethnicity, and Ancestry in Juvenile Justice

youth of color adjudicated for drug offenses are a case in point. An analysis of 2003 data found that 73% of adjudicated drug offense cases involved a White youth, while White youth were 58% of drug offense cases resulting in out-of-home placement and 75% of cases resulting in formal probation. In contrast, 25% of drug offense cases involved an African American youth, while African American youth were 40% of adjudicated drug offense cases resulting in out-of-home placement and 22% of drug offense cases receiving formal probation (National Council on Crime and Delinquency, 2007). Steen, Bond, Bridges, and Kubrin’s (2005) qualitative studies of court officials’ perceptions of similarly situated White and Black youth suggest that officials’ race-based biases are a factor contributing to disparities. Based on an examination of court records, they found that court officials had different perceptions and explanations for the motivations of Black and White youth in court. They were more likely to explain the delinquent behavior of Black youth by internal factors, such as having a lack of meaningful life goals or needing to be held accountable, while similar behavior of White youth was explained in relation to external factors such as having a difficult family life. Thus, the Black youth himself was perceived more negatively than the White youth (Bridges & Steen, 1998; Steen et al., 2005). Bishop (2005) notes that while race and ethnic disparities exist in the adult criminal justice system, they are more pronounced in the juvenile justice system where social factors, along with traditional criminal justice factors such as offense and offense history, are part of the decision-making process at every stage except adjudication. In this chapter we show that since before its official start in 1899, the juvenile justice system’s social

115

welfare mission has been a pillar of structural racism. The history of disparities in the juvenile justice system illustrates a progression of policies and practices that has resulted in embedded racial and ethnic inequities. Indeed, the trend in the United States has been to criminalize the very nature of adolescence, in the name of social welfare, with youth of color bearing the brunt of what is actually social control (see Boundy & Karger, Chapter 14, this volume; Jacobs, Miranda-Julian, & Kaplan, Chapter 10, this volume; Vaught, Chapter 15, this volume).

A HISTORICAL LEGACY OF DISPARITIES Disparate treatment of young people of color has deep historical roots in our nation, and contemporary disparities are a clear extension of those early roots. From the earliest days, structural de jure race-based policies and practices significantly influenced the treatment of children (Bell & Ridolfi, 2008). Simply put, many key policies and practices, and the assumptions about youth that undergird them, are racialized; understanding that historical legacy is critical to improving the current system. The Early 1800s to Early 1900s In the early 1800s, the number of people living in cities doubled as the U.S. economy transitioned from subsistence farming to wage labor. The poverty faced by many Americans during this time proved an inescapable reality for untold thousands of youth living in America’s rapidly expanding cities. Children who previously were responsible only for household chores on farms were now expected to help their parents survive, leading them to struggle

116

UNDERSTANDING INDIVIDUAL YOUTH

in factories or leave home entirely and make their own way (Grossberg, 2002). Increased mobility, disease, and weakening familial networks contributed to delinquency, as youngsters turned to petty crime as a means of financial support (Feld, 1999). Local governments reacted with harsh penalties and began establishing structures to manage the arrest, detention, and “treatment” of wayward youth, forming the early elements of the modern juvenile justice system (Krisberg, 1993). Concerned citizens began a campaign aimed at fighting the rising numbers of homeless and wayward youth across the nation. Their efforts were formalized as early as 1817, with the founding of the Society for the Prevention of Pauperism (Krisberg, 2005). However, creating a community organization to prevent pauperism was not intended to “lift all boats.” Indeed, scholars have observed that “the motivation of the reformers of the 19th century, whatever they overtly stated or implied, was one of social control of deviant elements of the increasingly heterogeneous society” (Frey, 1981, p. 10). This effort was led by men of high social status whose primary motivations were to prevent social disorder, protect their class status, and maintain what they believed to be the “moral health of the community” (Krisberg, 1993). This attitude led to New York City’s enactment of legislation regarding “children who beg.” This new legislation empowered officials to apprehend any child under 15 years of age who was found “soliciting charity” (Laws of New York, Ch. CCCXXXI, 1824). Almost immediately after passage of this legislation, the first juvenile institution in the country was opened in New York City. The New York House of Refuge opened its door with six White boys and three White girls. Soon, other cities would follow, including Boston and Philadelphia. Immediately

after the establishment of Houses of Refuge, a pattern of racial exclusion emerged when a separate “colored section” of the New York House of Refuge was created. Exclusion of Black children from such services was justified under the rationale that expenditures on Black children wasted resources and “it would be degrading to the White children to associate them with beings given up to public scorn” (Mennel, 1973, p. 17). When a Mississippi legislator proposed opening a reform school for Black children, the bill lost on the grounds that “it was no use trying to reform a Negro” (Oshinsky, 1996, p. 47). The prevailing sentiment was that “white taxpayers refused to ‘waste’ money on the needs of ‘incorrigible’ young blacks” (Oshinsky, 1996, p. 47). When Houses of Refuge begrudgingly began to admit children of color, services proved meager and insufficient. As a result, African American children were disproportionately confined in adult jails and prisons. Indeed, in just a short time, 60% of the children (under 16) being held at the Maryland penitentiary in Baltimore were African American. Similarly, approximately 50% of children in the Providence jail were African American, and all children under 16 in the Washington, DC, penitentiary were African American (Curry, 1981). A similar pattern emerged within institutions designed to serve Mexican American youth. While officials recognized that most Spanish-speaking youth had not attended school beyond the primary grades, they were reluctant to provide these youth with the educational skills necessary to improve their life chances. Mexican American youth were relegated to segregated Mexican schools, “designed to keep backward, over-age, and undereducated Spanish-speaking youth among their own kind” (Chavez-Garcia, 2006). While the attitudes expressed above reflected bias and bigotry, they did not have the

Race, Ethnicity, and Ancestry in Juvenile Justice

force of law. However, soon thereafter, the Ex parte Crouse decision in 1838 gave legal sanction to institutionalizing young people as an instrument of social control. Mary Ann Crouse’s mother placed her in the Philadelphia House of Refuge claiming that Mary’s confinement was warranted because her “vicious conduct rendered her beyond [her mother’s] power” (Ex parte Crouse, 1839). Mary’s father sued, seeking his daughter’s release on the basis that detention of a minor without a trial by jury violated the Constitution. The court denied her release, holding that “The House of Refuge is not a prison, but a school. Where reformation, and not punishment, is the end, it may indeed be used as a prison for juvenile convicts who would else be committed to a common goal” (Ex parte Crouse, 1839). The holding emphasized the legal doctrine of parens patriae, Latin for “parent of the country.” The court posed the rhetorical question, “May not the natural parents, when unequal to the task of education, or unworthy of it, be superseded by parens patriae, or common guardian of the community?” (Ex parte Crouse, 1839). Underscoring state supremacy over and above the rights of parents, the court held that when the parents are “unsuitable,” their natural parental rights are revocable (see Sherman & Blitzman, Chapter 4, this volume). Then, as now, Ex parte Crouse would have a devastating effect on all children, and particularly children of color. For example, in Native American communities traditional justice sought to instill a sense of harmony and reconciliation to the misbehaved child and to the victim using a restorative approach (Poupart, Redhorse, Peterson-Hickey & Martin, 2005). Typically, family meetings were held with the perpetrators and victims in order to balance victim compensation, perpetrator punishment, and community stability.

117

As a result, restorative justice reconciled victims’ rights and community safety, and promoted personal relationships. Using Ex parte Crouse as authority, officials derided and dismissed restorative justice traditions and replaced them by subjecting Native youth to long hours of labor and prison as a consequence for wrongdoing (Poupart et al., 2005). The doctrine of parens patriae continues to be a justification for misuse of the juvenile justice system purportedly to meet the needs of youth (Bell, Lacey, Ridolfi, & Finley, 2009; Nellis & Richardson, 2010). The Juvenile Court Era The rehabilitation versus punishment debate as framed by Crouse continued into the 1900s with the formation of the juvenile court. The foundation for the development of the country’s first juvenile court was laid by the creation of Hull House in Chicago, Illinois, by Jane Addams in the late 19th century. Hull House was established as a humane response to the existing houses of refuge, and represents a defining moment for rehabilitation as the guiding principle of the juvenile system. On April 14, 1899, the Illinois legislature enacted “An Act for the Treatment and Control of Dependent, Neglected and Delinquent Children,” and the first juvenile court opened on July 3, 1899, without a courthouse, detention center, or public funds for salaries (Tanenhaus, 2002). Under the Juvenile Court Act, a court separate from the adult system would hear the cases of delinquents under the age of 16. This court would stress “the child’s need and not the deed,” and the goal would be to rehabilitate rather than punish the child (Spring, 1998). However, then as now, there has never been a clear definition of what is considered “rehabilitation” or what is considered “punishment.” Consistently, juvenile

118

UNDERSTANDING INDIVIDUAL YOUTH

justice professionals have been given authority and discretion to make decisions about children, youth, and families measured by illdefined principles. From the very beginning of the juvenile court era, juvenile justice practitioners continued to confine Black children in adult prisons, and excluded them from the protections extended to White juveniles in the juvenile court. By 1910, the proportional representation of Black male juveniles doubled (27.5%) while the representation of Black girls nearly tripled (39%) (Ward, 2001). Latinos did not fare well in the juvenile court era either. In fact, Los Angeles newspapers negatively portrayed Mexican American youth, and police were quick to target them as gang members, placing them in institutions in large numbers (Sherman, 1943). In looking back on the first portion of the 20th century, the old adage “be careful what you wish for” aptly summarizes the progression of the juvenile court system. While created to protect children from the adult criminal system, its perception as a milder intervention meant that more children entered its sphere. As the juvenile justice system progressed from mere idea to full-fledged bureaucracy, over time the distinction between rehabilitation and punishment blurred. The seminal Supreme Court decision of In re Gault (1967) addressed abuses in the juvenile justice system and began a critical examination of the juvenile court. In Gault, the Supreme Court found a significant gap between the rehabilitative rhetoric of the juvenile court and its practical reality. Although not willing to discard the juvenile court experiment, the Supreme Court held that the Constitution required significantly enhanced procedural protections for juveniles, including a right to counsel, protection against self-incrimination, and the right to cross-examine witnesses (see

Sherman & Blitzman, Chapter 4, this volume). Feld (2005) describes the court prior to Gault as a “nominally rehabilitative social welfare agency” (p. 123), which the Supreme Court’s procedural decisions began to transform into a more formal structure. In 1974 Congress passed the JJDPA, which prohibited detention of youth with adults, prohibited detaining status offenders in secure facilities with delinquent youth, and established alternatives to detention. The JJDPA and OJJDP supported research and stimulated state reform consistent with the rehabilitative vision of the juvenile justice system. Gault began a period of rehabilitation and expanded procedural safeguards for young people. During this period, the system served mostly White youth, whose numbers greatly increased with the inclusion of status offenses in data collection (i.e., truancy, curfew violators, and runaways). With the growth of White youth in the system, youth of color represented a smaller proportion of the overall juvenile justice population (U.S. Department of Justice, 1987). This focus on rehabilitation prompted by Gault and the JJDPA would be short lived. The move away from the child-oriented rehabilitative approach in juvenile justice began in the early 1980s, when the public feared an epidemic of ruthless youth criminal activity. During a time when overall crime rates were dropping, violent youth crime spiked for a short period, inspiring a few influential academics like James Q. Wilson and John Dilulio to incorrectly predict that we would soon be facing a population surge of “superpredators,” youth of color with no moral conscience who believe committing a crime is a rite of passage and who would not fear the stigma of arrest or the pain of imprisonment (Deitch, Barstow, Lukens, & Reyna, 2009). Policy makers and the media picked up this notion.

Race, Ethnicity, and Ancestry in Juvenile Justice

These dire and inaccurate predictions were strikingly racialized, with James Allan Fox noting that the population growth among White youth would be modest, while the population growth among Black youth would be much more significant (Soler, Schoenberg, & Schindler, 2009). Although juvenile crime declined beginning in 1995 (Nelson, 2008), these false predictions and the attendant media frenzy resulted in the enactment of “get tough” policies in states throughout the country. It is no coincidence that this attempt to respond to “public safety” has resulted in a greater impact on youth of color. While these policies and practices, embedded in federal, state, and local laws, appear to be race neutral, they are discriminatory in effect, driving youth of color into the juvenile justice system.

THE MYTH OF RACE NEUTRALITY IN POLICY AND PRACTICE A few policies notable for their impact on youth of color are drug-free zone laws, antigang laws, zero tolerance in schools, and transfer of youth to adult court. All of these policies are the result of legislation during the late 1980s and through the 1990s that either created the policies (zero tolerance) or modified existing policies (transfer to adult court) to increase their discriminatory effect while appearing race neutral. These policies are formalized in state law and have become accepted practice, with sweeping ramifications for the juvenile justice process and its youth. Drug-Free Zones In the 1980s, states began increasing penalties for drug offenses committed in prohibited zones surrounding schools and other public

119

and quasipublic locations (Gaudio, 2010). Legislatures imposed these enhanced penalties for activities in areas ranging from 300 feet to 3 miles surrounding schools or other public locations (e.g., public housing), regardless of whether schoolchildren were involved in, or the target of, the drug offense. The enforcement of drug-free zones in densely populated urban areas, which are disproportionately populated by youth of color and where much of the residential area is within a school or public housing zone, resulted in a large increase in youth of color in the juvenile justice system (Greene, Pranis, & Ziedenberg, 2006). Thus, drug-free zone legislation had the effect of both increasing the perception of being “tough on crime” and increasing racial and ethnic disparities within the juvenile justice system. In fact, racial and ethnic disparities in drug arrests are well established beyond those associated with drug-free zones and have been attributed to a number of enforcement strategies, such as an enforcement focus on lowlevel drug dealers within minority communities and the relative visibility of drug activity in urban neighborhoods of color (Bishop, 2005). This differential enforcement has been attributed to the media-fueled perception that drug crime is focused in urban African American communities. A related illustration of how legal reforms in drug enforcement and transfer have a discriminatory impact occurred in Chicago in the 1990s when the Illinois legislature amended its transfer law, making adult prosecution of 15- to 16-year-olds charged with drug crimes within 1,000 feet of public housing mandatory. Like the research on the impact of drug-free school zones, a study of the resulting transfers over one year found that all of the transferred youth were African American (Bishop, 2005; Clarke, 1996). A 2006 Justice Policy Institute (JPI) report found that across three states that had

120

UNDERSTANDING INDIVIDUAL YOUTH

implemented drug-free zone laws, urban communities of color were disproportionately affected by prohibited zones, and enforcement of the laws had little or nothing to do with protecting children. A case in point is Massachusetts’s drug-free zone statute. Research on the implementation of Massachusetts’s statute, enacted in 1989, found the following: &

& &

&

&

Seven out of 10 drug-free zone incidents occurred when school was not in session. Less than 1% involved sales to youth. Eighty percent of defendants who received mandatory, enhanced sentences under the statute were Black or Latino, even though 45% of those arrested were White. While roughly 80% of all arrests took place within a school zone, only 15% of Whites were charged with an eligible offense compared to 52% of non-White defendants. In a state where Whites comprise 80% of the resident population, Blacks and Latinos comprise nearly 80% of those convicted of drug-free zone violations (Greene, Pranis, & Ziedenberg, 2006).

Moreover, JPI’s analysis suggested sharp disparities affecting both youth and adults of color in the way drug-free zone laws were enforced (Greene et al., 2006). The seemingly race-neutral intent of the laws, that is, protecting children from drug-related activities, disproportionately affected youth of color. Gangs Another contributor to the current overrepresentation of youth of color in confinement was the proliferation in the 1990s of anti-“gang”

legislation. Although gangs pose a public safety issue for those communities that experience them, antigang laws cast a wide net and often criminalize the very nature of youth behavior. Young people “hang out” or socialize in groups with peers who might be friends, family, or extended family. Stereotypes about which youth are associated with gangs can affect police decisions about who to stop and who to arrest (Villarruel & Walker, 2002). For example, familia and extended families are very important in the Latino culture, where it is not uncommon for a young person who is not a member of a gang, or affiliated with a gang, to have a cousin or friend who may be a gang member. A study of Latino youth in California found that 84% of youth reported having family, friends, or acquaintances in gangs, even though only 10% of youth personally reported being in a gang or “crew” themselves (Arya et al., 2009). In many jurisdictions the mere act of two youth being out and about together can easily result in their being stopped, photographed, and identified as “gang associates” by the police. In many states the information gathered from law enforcement’s gang profiling is entered into “gang databases.” The criteria for being placed on these lists are often vague, including criteria like “hangs around with gang members” (Villarruel & Walker, 2002). Moreover, living in the same barrio as a suspected gang member can lead to being labeled as an “associate.” Youth and families of color are often segregated in neighborhoods of concentrated poverty that are characterized by high unemployment, poor schools, and deliberate disinvestment. This disadvantage is compounded when they are more likely to have their behavior criminalized because of their race, ethnicity, and place of residence. For these reasons and a complex of others, youth of color are particularly at risk of being

Race, Ethnicity, and Ancestry in Juvenile Justice

classified as gang members. Results from the 2001–2004 National Youth Gang Center’s annual survey showed that law enforcement agencies reported gang members being 35.7% African American, 48.2% Latino, and 9.5% White. By contrast, results of the National Longitudinal Survey of Youth, found that 42% of White youth, 27% of African American youth, and 24% of Latino youth reported being gang involved (Greene & Pranis, 2007). The contrast between law enforcement data showing the greatest gang involvement among youth of color and the youth self-report data showing the greatest gang involvement among White youth, highlights the problem with relying exclusively on law enforcement data and may speak to how bias, stereotyping, and intolerance of adolescent behaviors leads to the categorization of youth of color as gang members. Zero-Tolerance School Policies Like enforcement of drug-zones and gang laws, youth of color comprise a disproportionate share of public school students referred to the juvenile justice system under zero-tolerance policies [American Psychological Association (APA), 2008; see Boundy & Karger, Chapter 14, this volume; Vaught, Chapter 15, this volume]. Zero tolerance describes harsh, predefined mandatory consequences, such as suspension or expulsion, imposed by schools for a violation of school rules, without regard to the seriousness of the behavior, mitigating circumstances, and without consideration of context. Zero-tolerance rhetoric became widespread in the 1990s. It was initially a response to drug enforcement and then became more widespread in reaction to media reports about gangs and school shootings, even though school crime rates were stable or declining by the time these

121

policies were implemented (APA, 2008; Peterson & Schoonover, 2008). One initial appeal of zero tolerance was the perception that because these laws were objective and therefore apparently race neutral, they might be fairer to youth of color and other students, who had been overrepresented in school disciplinary proceedings. However, a decade of research reflects the opposite result. African American students have been consistently overrepresented among students who are suspended and expelled, a finding that cannot be entirely explained by economic disadvantage. Nor are there data supporting the assumption that African American students exhibit higher rates of disruption or violence that would warrant higher rates of discipline. Rather, African American students may be disciplined more severely for less serious or more subjective reasons such as lack of teacher preparation in classroom management, or lack of teacher cultural competence, or racial stereotyping (APA, 2008; see Boundy & Karger, Chapter 14, this volume). The lack of a single definition of zero tolerance illustrates the ad hoc nature of these policies, which are codified as federal law but have the ability to change at the state or school district level. For instance, the Gun-Free Schools Act of 1994 (Gun Free Schools Act, 20 U.S.C. §7151, GFSA) required schools to expel any student who brings a firearm to school for a calendar year. Subsequent changes in many state laws and local school district regulations broadened the GFSA focus on firearms to many other kinds of “weapons,” such as a fourth grader who brought a twoinch Lego “weapon,” along with his Lego policeman to school. The principal considered the toy worthy of suspending the student, although the local Department of Education advised that the toy need only be confiscated

122

UNDERSTANDING INDIVIDUAL YOUTH

and returned to the child’s parents at the end of the day (Padnani, 2010). Schools’ reliance on zero tolerance has resulted in an increased connection between schools and the juvenile justice system, including increased police presence in schools and increased referrals to the juvenile justice system for infractions that were once handled in school (Skiba et al., 2006; Wald & Losen, 2003; see also Boundy & Karger, Chapter 14, this volume; Vaught, Chapter 15, this volume). The result is what has been called the school-to-jail pipeline, which has a disproportionate impact on youth of color (Wald & Losen, 2003; see also Boundy & Karger, Chapter 14, this volume). U.S. Department of Education data indicate that Black students are suspended at higher rates than White students. In 2006, approximately 15% of Black students were suspended as compared with 5% of White students, and approximately 0.5% of Black students were expelled compared with 0.1% of White students (Planty et al., 2009). Juvenile justice practitioners and reformers throughout the country offer plentiful case data of youth of color referred to the juvenile justice system for school-based misbehaviors that have historically been handled by school personnel. Stories in the media abound about the abuses of zero-tolerance policies. Like many of the reforms beginning in the 1990s, zero tolerance is an expedient, seemingly race-neutral way for schools to wash their hands of any trouble, real or perceived, large or small. Youth of color face disparities in referral to the juvenile justice system through policies like zero tolerance, while at the same time this “get tough” attitude is mirrored in the courts through the expansion of legislative and prosecutorial transfer laws once youth enter the juvenile justice the system.

Transfer to Adult Court The last two decades have seen a continued criminalization of delinquency, including expanding the ways youthful offenders are tried and punished as adults in the criminal justice system. Over this time, there has been an expansion of legislative and prosecutorial transfer, approaches that take the decision about whether to try and treat a youth in the juvenile justice system out of the hands of the courts where individual and contextual circumstances can be considered. We have also seen reductions in the age at which youth can be tried as adults in many states (see Sherman & Blitzman, Chapter 4, this volume). Against this backdrop, national and jurisdictionspecific data demonstrate that youth of color are transferred to adult courts far in excess of their proportion of the overall cases processed by juvenile systems (Burgess-Proctor, Holtrop, & Villarruel, 2007). In 2002, three out of four of the 4,100 new admissions of children under 18 years of age to adult prison were youth of color (National Council on Crime and Delinquency, 2007). In 2005, of those youth transferred to adult court through judicial waiver, 39% were Black youth, who comprise 58% of juveniles admitted to adult prisons and 28% of youth arrests. Disparities among Black youth become greater further into the criminal justice system, and even at arrest, they far exceed the 16% that they comprise in the youth population nationwide (Arya, Augarten, & Shelton, 2008). Latinos are over 40% more likely than White youth to be waived to the adult criminal justice system and nearly twice as likely to be waived to the adult system for an offense against a person. A significant percentage of Latino youth are at risk of being tried as adults or are being held in an adult jail by virtue of where they live. Thirty-seven percent of

Race, Ethnicity, and Ancestry in Juvenile Justice

Latino youth ages 10–17 live in one of the 13 states where the maximum age of juvenile jurisdiction is 16 or 17, in contrast to the majority of the country where juvenile jurisdiction ends at 18. In these 13 states, regardless of how minor the crime, the young person will automatically be prosecuted in the adult criminal justice system (Arya et al., 2009; see Sherman & Blitzman, Chapter 4, this volume). State data are even more striking. According to a 2007 report, in California, Black youth are 4.7 times and Latino youth are 3.4 times as likely to be transferred into the adult system as White youth. In Connecticut, youth of color are less than 30% of the population but 80% of young men in adult corrections; in Wisconsin, youth of color are approximately 15% of the state population but are 7 out of 10 youth in adult jails and prisons (Campaign for Youth Justice, 2007). These statistics reflect policies and practices that hearken back to the 19th century when Black youth were placed in the adult criminal justice system as intentional segregation from their White peers in the juvenile justice system. Today, the overrepresentation of youth of color in youth justice systems is the result of deliberate policy decisions often supported by weak science and anecdote. These inequities result from structural components in our schools, communities, and justice systems, and reflect conscious decisions about who will “suffer abuse and who will be shielded from harm.” The Role of Local Practice The history of change in the juvenile justice system suggests that racial and ethnic inequities are by design and not accident. The inequities are the result of a legacy of structural elements, rather than individual bias and racism. While shifts in policies and practices may appear in

123

the guise of race neutrality, the shifts and their target—youth of color—were intentional. Indeed, Michelle Alexander, in The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), explores the role of the criminal justice system in creating and perpetuating a racial hierarchy in the United States. Structural elements, similar to those that influence national policy, also influence local policies and practices in the juvenile justice system. Within each local juvenile justice continuum, there is a wide range of daily discretionary decisions that are formalized and highly influential to the future of youth. They include, for example, local decisions about when to detain youth for placement failures, warrants, or violations of probation (W. Haywood Burns Institute, 2009). In making these local decisions, systems often fail to consider the racial, cultural, or geographic contexts for youth of color and their families, and that failure can lead to local practices that drive youth of color into detention systems disproportionately, unfairly, and contrary to the stated goals of local systems. A typical example of local practice having a discriminatory effect is as follows: A youth is released at intake on the condition that she or he report to a youth-serving program on a daily basis. The young person has no transportation to the program and would have to walk through a couple of neighborhoods to get to there. One neighborhood in particular is a little rough, with a reputation for confronting anyone who is an “outsider.” Because the youth fears for her or his safety, the young person decides not to report to the program. Program staff immediately report the youth as AWOL, and the youth is subsequently picked up by his or her probation officer and held in secure detention for placement failure. In this case, failing to consider the geographic reality of a seemingly race-neutral policy

124

UNDERSTANDING INDIVIDUAL YOUTH

results in a differential impact on poor youth of color, propelling them deeper into the system. Unabated and ill-conceived policies and practices continue to be implemented both nationally and locally in response to adolescent misbehavior. This familiar pattern of criminalizing kids for typical adolescent behavior affects youth of color disproportionately, perpetuating the myth of race neutrality in policy and practice. Taking responsibility for racial equity means being willing to acknowledge that our nation’s enduring patterns of racial disparity are inconsistent with our ideals and thus unacceptable. It also means demonstrating the will to challenge norms or values that may seem to be “normal” or “race neutral” in our culture and political economy (Lawrence, Sutton, Kubish, Susi, & FulbrightAnderson, 2004).

THE URGE TO PROVIDE AND PROTECT: LOW-RISK, HIGH-NEED YOUTH The juvenile justice system has become the default system—the warehouse—for low-risk, high-need youth whose needs should have been served, or should currently be served, by other public systems (see also Beyer, Chapter 1, this volume). This structural failure drives many youth of color into the juvenile justice system (see Ross & Miller, Chapter 17, this volume; Schiraldi, Schindler, & Goliday, Chapter 20, this volume). We know that up to 70% of youth in the juvenile justice system have a mental health disorder, while more than 20% have a serious mental illness (see Braverman & Morris, Chapter 3, this volume; Boundy & Karger, Chapter 14, this volume). Rates of posttraumatic stress are high among detained youth (Rich et al., 2009), and many youth in the juvenile justice system have

substance abuse issues, often in combination with mental health issues (see Braverman & Morris, Chapter 3, this volume). School failure and its consequences in terms of suspension, expulsion, and dropping out represent another pervasive need among youth in the justice system (see Boundy & Karger, Chapter 14, this volume; Vaught, Chapter 15, this volume). When these needs go unmet in the community, there is evidence that youth of color are referred to the justice system (Bell et al., 2009). A 2007 study by the American Psychological Association (Pottick, Kirk, Hsieh, & Tian, 2007) found that youth of color were often given diagnoses that led to confinement. The report found a disparity in clinicians’ judgments of mental disorders between minority and nonminority youth. Controlling for context and clinicians’ characteristics, clinicians were less likely to identify a mental health disorder in Black or Latino youth than in White youth. One possible explanation was that when clinicians were faced with antisocial behavior, they were diagnosing White youth with mental disorders and directing them to treatment, while diagnosing minority youth with behavioral issues and directing them to the juvenile justice system. Improving the capacity of the juvenile justice system to deliver mental health services is not a legitimate solution because the juvenile justice system is not an appropriate venue for delivering mental health services to youth (Grisso, 2008). Similarly, the juvenile justice system alone is not equipped to respond to the needs of low-risk youth with substance abuse issues. In 2006, nearly 10% of youth 12–17 reported being actively engaged in drug use. Research shows that there is a direct connection between drug and alcohol abuse among youth and trouble with the law for youth who are disproportionately from low-income

Race, Ethnicity, and Ancestry in Juvenile Justice

communities and communities of color. In 2008, more than 23.1 million people ages 12 or older needed treatment for a drug or alcohol problem. Of these, only 2.3 million (0.9% of persons aged 12 or older and 9.9% of those who needed treatment) received treatment at a specialty facility (Substance Abuse and Mental Health Services Administration, 2009). Many of these are youth who ended up in detention. Similarly, differential treatment has been observed in physical health care. Trauma, or as John Rich describes it—adversity—is one health issue that impacts justice system involvement (Rich et al., 2009; see Braverman & Morris, Chapter 3, this volume). Dr. Nadine Burke posits that the clinical effects of childhood trauma need to be given more attention as a serious medical epidemic and significant contributor to overincarceration of youth of color (N. Burke, personal communication). The preceding discussion documents the presence, extent, and some of the reasons for racial and ethnic disparities in juvenile justice systems. Overcoming these dynamics necessarily involves confronting the structural nature of race, ethnicity, and institutional inertia. We know from innovative work around the country in a variety of jurisdictions that progress can be made—that systems can be operated fairly and equitably while maintaining public safety (Nellis & Richardson, 2010). A Positive Future In spite of the structurally biased nature of the juvenile justice system, both systemic and programmatic reforms that promote equity are being implemented throughout the country. Sites throughout the country have established that these reforms have effectively reversed the traditional practice of reliance

125

on detention, demonstrated that detention and equity reforms are effective public safety strategies, and provided empirical evidence that the existence of racial and ethnic disparities is not an intractable fact of life (Bell et al., 2009; Mendel, 2009; Nellis & Richardson, 2010). Fundamental to successful system reform are collaborative and data-driven strategies to change the way adults in the juvenile justice system operate—that is, collaboratively utilizing data to conduct critical self-examination of policies and practices and how they impact youth of color. Developing objective decision making along the juvenile justice continuum is an essential component of reform, as is the need for intentional and determined leadership to level the playing field for youth of color. Similarly, successful programs demonstrate racially and culturally responsive components that promote opportunities for positive youth development and that strengthen families and communities. The Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative For almost two decades, the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative (JDAI) has worked with jurisdictions throughout the nation to safely reduce reliance on secure detention. As of 2009, approximately 110 local jurisdictions in 27 states and the District of Columbia were implementing JDAI’s core strategies to establish more effective, efficient, safe, and equitable systems (see Schiraldi, Schindler, & Goliday, Chapter 20, this volume). A recent evaluation of JDAI documents its progress making fundamental changes to juvenile justice systems through alternative policies, practices, and programs (Mendel, 2009; Nellis & Richardson, 2010).

126

UNDERSTANDING INDIVIDUAL YOUTH

JDAI’s theory of change is based on eight core strategies, including: collaboration, collection and utilization of data, objective admission screening, alternatives to secure detention, case processing reforms, flexible policies and practices to address “special detention cases” (e.g., violations of probation, writs/warrants, and awaiting placement), ensuring safe and appropriate conditions of confinement, and strategies and innovations to reduce racial and ethnic disparities. Working on implementing the eight core strategies through a racial and ethnic lens to identify and analyze points of disparities, JDAI sites were among the first in the country to demonstrate reductions of racial and ethnic disparities (Hoytt, Schiraldi, Smith, & Ziedenberg, 2002). This was accomplished through the implementation of systemic and programmatic changes targeted at reducing the reliance on secure detention for youth of color. JDAI jurisdictions making significant gains demonstrate that no specific strategy is more important than the tangible commitment, political will, and leadership of system personnel to achieving racial and ethnic equity. Results include significant and measurable outcomes in the safe reduction of detention admissions, average daily population (ADP), and average length of stay (ALOS), as well as increased use of alternatives to detention for youth of color (JDAI Results Reports, 2009; JDAI site quarterly reports, unpublished data). W. Haywood Burns Institute for Juvenile Justice Fairness and Equity (BI) Another organization that has achieved positive, measurable results reducing disparities is the W. Haywood Burns Institute for Juvenile Justice Fairness and Equity (BI). BI’s methodology brings officials from law enforcement, legal systems, and child welfare together with community leaders, parents, and children, and

takes them through a data-driven, consensusbased approach to change policies, procedures, and practices in the juvenile justice system that result in the disproportionate detention of youth of color and poor children. BI’s work in more than 40 jurisdictions throughout the United States provides empirical evidence that solving disparities and disproportionality is possible. BI has achieved measurable reductions in disparities by fashioning institutional responses to policies and practices impacting youth of color such as zero tolerance, “failures to appear,” warrants, and inordinate lengths of stay in detention (Hernandez, 2006). Models for Change DMC Action Network The John D. and Catherine T. MacArthur Foundation’s Models for Change initiative is another national initiative working on racial and ethnic disparities. Through improved data and intentional and targeted interventions, Models for Change states are working to promote fair and unbiased juvenile justice systems that treat youth, sharing knowledge and accelerating progress in the reduction of racial and ethnic disparities in the juvenile justice system. The Models for Change DMC Action Network was launched in 2007 to bring together teams from select local jurisdictions, expose them to the latest thinking among national experts, and give them an opportunity to learn from one another about effective ways to reduce the disproportionate contact of minority and ethnic youth with the juvenile justice system. Each site is implementing at least two “strategic innovations” that are likely to have an impact on reducing the disproportionate contact of minority youth locally. Sites will track their implementation experiences, and results will be shared with their colleagues

Race, Ethnicity, and Ancestry in Juvenile Justice

and the field. Strategic innovations include: (1) improvements in the tracking and reporting of data, (2) enhanced cultural competency and community responsiveness of staff, (3) diverting preadjudicated youth, and (4) expanding postdisposition culturally relevant alternatives to incarceration.

CONCLUSION Over two centuries ago, German philosopher Johann Christoph Friedrich von Schiller introduced his immutable law of events, stating “into today already walks tomorrow.” As professionals, scholars, practitioners, and community members vested in the future of the next generation, we cannot allow the overincarceration of youth of color to go unchecked. Our mandate must be to create fair, equitable, and humane approaches for children in trouble with the law, which have positive, serviceoriented interventions and consequences, and maintain public safety. Civil rights leader Cesar Chavez once said that “the love for justice that is in us is not only the best part of our being but it is also the most true to our nature.” Justice demands that we be ever vigilant about who suffers and who is shielded from harm. All young people deserve to be treated equally and fairly by the systems that mean to serve and protect them. It is everyone’s job to work tirelessly to achieve this goal.

REFERENCES Alexander, M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness. New York, NY: New Press, 2010. American Psychological Association Zero Tolerance Task Force. (2008). Are zero tolerance policies

127

effective in schools? An evidentiary review and recommendations. American Psychologist, 63(9), 852–862. Arya, N., Augarten, I., & Shelton, H. (2008). Critical condition: African-American youth in the justice system. Washington, DC: Campaign for Youth Justice. Accessed online at www.campaign4youthjustice .org/documents/CFYJPB_CriticalCondition.pdf Arya, N., Villarruel, F., Villanueva, C., Augarten, I., Murgia, J., & Sanchez, J. (2009). America’s invisible children, Latino youth and the failure of justice. Washington, DC: Campaign for Youth Justice. Accessed online at www.campaign4youthjustice.org /documents/CFYJPB_InvisibleChildren.000.pdf Bell, J., Lacey, C., Ridolfi, L., & Finley, M. (2009). The keeper and the kept, reflections on local obstacles to disparities reduction in juvenile justice systems and a path to change. San Francisco, CA: W. Haywood Burns Institute. Bell, J., & Ridolfi, L. (2008). Adoration of the question, reflections on the failure to reduce racial & ethnic disparities in the juvenile justice system. San Francisco, CA: W. Haywood Burns Institute. Bishop, D. M. (2005). The role of race and ethnicity in juvenile justice processing. In D. F. Hawkins & K. Kempf-Leonard (Eds.), Our children, their children (pp. 23–82). Chicago, IL: University of Chicago Press. Bridges, G. S. & Steen, S. (1998). Racial disparities in official assessments of juvenile offenders: Attributional stereotypes as mediating mechanisms. American Society Review, 63, 554–570. Burgess-Proctor, A., Holtrop, K., & Villarruel, F. (2007). Youth transferred to adult court: Racial disparities. Washington, DC: Campaign for Youth Justice. Available at www.campaign4youthjustice.org/ Downloads/KeyResearch/MoreKeyResearch/ AdultificationPolicyBriefVol2.pdf Campaign for Youth Justice. (2007, March). The consequences aren’t minor: The impact of trying youth as adults and strategies for reform. Available at www .campaign4youthjustice.org/documents/CFYJNR_ ConsequencesMinor.pdf Chavez-Garcia, M. (2006). Youth, evidence, and agency: Mexican and Mexican American youth at the Whittier State School, 1890–1920. Journal of Chicano Studies, 31(2), 55–83. Clarke, E. E. (1996). A case for reinventing juvenile transfer. Juvenile and Family Court Journal 47, 3–22.

128

UNDERSTANDING INDIVIDUAL YOUTH

Curry, L. P. (1981). The free Black in urban America, 1800– 1850: The shadow of the dream. Chicago, IL: University of Chicago Press. Deitch, M., Barstow, A., Lukens, L., & Reyna, R. (2009). From time out to hard time: Young children in the adult criminal justice system. Austin: University of Texas at Austin, LBJ School of Public Affairs. Available at www.utexas.edu/lbj/news/images/ file/From%20Time%20Out%20to%20Hard%20 Time-revised%20final.pdf Ex parte Crouse, 4 Whart 9 (1839). Feld, B. (2005). Race and the jurisprudence of juvenile justice: A tale in two parts, 1950–2000. In D. F. Hawkins & K. Kempf-Leonard (Eds.), Our children, their children (pp. 12–163). Chicago, IL: University of Chicago Press. Feld, B. C. (1999). Bad kids: Race and the transformation of the juvenile court. New York, NY: Oxford University Press. Frey, C. (1981). The House of Refuge for Colored Children. Journal of Negro History, 66(1), 10. Gaudio, C. M. (2010). A call to congress to give back the future: End the “war on drugs” and encourage states to reconstruct the juvenile justice system. Family Court Review, 48(1), 212–227. Greene, J., & Pranis, K. (2007). Gang wars: The failure of enforcement tactics and the need for effective public safety strategies. Washington, DC: Justice Policy Institute. Available at www.justicepolicy.org/images/upload /07-07_REP_GangWars_GC-PS-AC-JJ.pdf Greene, J., Pranis, K., & Ziedenberg, J. (2006). Disparity by design: How drug-free zone laws impact racial disparity—and fail to protect youth. Washington, DC: Justice Policy Institute. Available at www.justice policy.org/images/upload/06-03_REP_Disparityby Design_DP-JJ-RD.pdf Grisso, T. (2008). Adolescent offenders with mental disorders. The Future of Children, 18(2), 143–165. Available at http://futureofchildren.org/futureof children/publications/docs/18_02_07.pdf Grossberg, M. (2002). Changing conceptions of child welfare in the United States, 1820–1935. In M. K. Rosenheim, F. E. Zimring, D. S. Tanenhaus, & B. Dohrn (Eds.), A century of juvenile justice. (pp. 3–41). Chicago, IL: University of Chicago Press. Gun Free Schools Act of 1994 (20 U.S.C. §7151) (2002). Hernandez, G. (2006). Implementing the Burns Institute Model to reduce DMC: Pima County. Unpublished report, W. Haywood Institute, San Francisco, CA.

Hoytt, E., Schiraldi, V., Smith, B., & Ziedenberg, J. (2002). Pathways to juvenile detention reform: Reducing racial disparities in juvenile detention. Baltimore, MD: Annie E. Casey Foundation. In re Gault, 387 U.S. 1 (1967). Juvenile Detention Alternatives Initiative JDAI Results Reports. (2009). Unpublished data. Baltimore, MD: Annie E. Casey Foundation. JDAI site quarterly reports. Unpublished data. Baltimore, MD: Annie E. Casey Foundation. Juvenile Justice Delinquency and Prevention Act of 1974 (42 U.S.C. 5611 et seq.) (2002). Krisberg, B. (1993). Reinventing juvenile justice. London, England: Sage. Krisberg, B. (2005). Juvenile justice: Redeeming our children. Thousand Oaks, CA: Sage. Lawrence, K., Sutton, S., Kubisch, A., Susi, G., & Fulbright-Anderson, K. (2004). Structural racism and community building. Washington, DC: Aspen Institute Roundtable on Community Change. Available at www.aspeninstitute.org/sites/default/files/content /docs/roundtable%20on%20community%20change /aspen_structural_racism2.pdf Laws of New York, Ch. CCCXXXI, 1824, 1824 Law Establishing County Poorhouses in New York. Available at www.poorhousestory.com/1824_law .htm Leiber, M. (2002). Disproportionate minority confinement (DMC) of youth: An analysis of state and federal efforts to address the issue. Crime & Delinquency, 48(1), 3–45. Mendel, R. (2009). Two decades of JDAI: A progress report, from demonstration project to national standard. Baltimore, MD: Annie E. Casey Foundation. Mennel, R. M. (1973). Thorns and thistles: Juvenile delinquents in the United States, 1825-1940. Hanover, NH: University Press of New England, p.17. As cited in Ward, G. K. (2001). Color lines of social control: juvenile justice administration in a racialized social system, 1825–2000. Dissertation Abstracts International, 2002 62(10), 3582-A. (UMI No. DA3029453). Moriearty, P. L. (2008). Combating the color-coded confinement of kids: An equal protection remedy. New York University Review of Law and Social Change, 32, 285–343. National Council on Crime and Delinquency. (2007). And justice for some: Differential treatment of youth of color in the justice system. Accessed online at www.nccdcrc.org/nccd/pubs/2007jan_justice _for_some.pdf

Race, Ethnicity, and Ancestry in Juvenile Justice

Nellis, A., & Richardson, B. (2010). Getting beyond failure: Promising approaches for reducing DMC. Youth Violence and Juvenile Justice, 000(00), 1-11. Advance online publication. doi: 10.1177 /1541204009361180 Nelson, D. W. (2008, June). A road map for juvenile justice reform. Baltimore, MD: Annie E. Casey Foundation. Available at http://datacenter.kidscount.org/ db_08pdf/2008_essay.pdf Oshinsky, D. M. (1996). Worse than slavery: Parchman Farm and the ordeal of Jim Crow justice. New York, NY: Free Press. Padnani, A. (2010, February 3). Big brouhaha over New Dorp boy’s tiny toy gun. Staten Island Real-Time News. Retrieved from www.silive.com/news/index.ssf /2010/02/big_brouhaha_over_tiny_toy_gun.html Peterson, R. L., & Schoonover, B. (2008). Fact sheet #3: Zero tolerance policies in schools, Muncie, IN: Consortium to Prevent School Violence. Retrieved from www.preventschoolviolence.org/resources _assets/CPSV-Fact-Sheet-3-Zero-Tolerance.pdf Pew Hispanic Center. (2007). Tabulations of 2000 Census (5% IPUMS) and 2007 American Community Survey (1% IPUMS). Available at http://pew hispanic.org/files/factsheets/hispanics2007 Piquero, A. R. (2008). Disproportionate minority contact. Future of Children, 18(2), 59–79. Planty, M., Hussar, W., Snyder, T., Kena, G., Kewal Ramani, A., . . . Dinkes, R. (2009). The condition of education (2009) (NCES 2009-081). Washington, DC: National Center for Educational Statistics, Institute of Educational Sciences, U.S. Department of Education. Pope, C., & Leiber, M. J. (2005). Disproportionate minority confinement/contact (DMC): The federal initiative. In D. F. Hawkins & K. KempfLeonard (Eds.), Our children, their children (pp. 351–389). Chicago, IL: University of Chicago Press. Pottick, K. J., Kirk, S. A., Hsieh, D. K, & Tian, X. (2007). Judging mental disorder: Effects of client, clinician, and contextual differences. Journal of Consulting and Clinical Psychology, 75, 1–8. Poupart, J., Redhorse, J., Peterson-Hickey, M., & Martin, M. (2005). Searching for justice: American Indian perspectives on disparities in Minnesota criminal justice system. Saint Paul, MN: American Indian Policy Center. Rich, J., Corbin, T., Bloom, S., Rich, L., Evans, S., & Wilson, A. (2009). Healing the hurt: Trauma informed

129

approaches to the health of men and boys of color. Philadelphia, PA: Drexel University School of Public Health. Ridolfi, L. (2004, July 16). internal memo. San Francisco, CA: W. Haywood Burns Institute. Sherman, G. (1943, June 2). Youth gangs leading cause of delinquencies. Los Angeles Times. Skiba, R., Reynolds, C. R., Graham, S., Sheras, P., Conoley, J. C., & Garcia-Vasquez, E. (2006). Are zero tolerance policies effective in schools? An evidentiary review and recommendations. Washington, DC: American Psychological Association. Soler, M., Shoenberg, D., & Schindler, M. (2009). Juvenile justice: Lessons for a new era. Georgetown Journal of Poverty Law & Policy, 16, 483–541. Substance Abuse and Mental Health Services Administration. (2009). Results from the 2008 National Survey on Drug Use and Health: National Findings (Office of Applied Studies, NSDUH Series H-36, HHS Publication No. SMA 09-4434). Rockville, MD. Spring, M. E. (1998) Comment: Extended jurisdiction juvenile prosecution: A new approach to the problem of juvenile delinquency in Illinois. 31 J. Marshall L. Rev.1351. Steen, S., Bond, C. E. W., Bridges, G. S., & Kubrin, C. (2005). Explaining assessments of future risk: Race and attributions of juvenile offenders in presentencing reports. In D. F. Hawkins & K. Kempf-Leonard (Eds.), Our children, their children (pp. 245–269). Chicago, IL: University of Chicago Press. Tanenhaus, D. S. (2002). The evolution of juvenile courts in the early twentieth century: Beyond the myth of immaculate construction. In M. K. Rosenheim, F. E. Zimring, D. S. Tanenhaus, & B. Dohrn (Eds.), A century of juvenile justice (pp. 42– 73). Chicago, IL: University of Chicago Press. Tracy, P. E. (2005). Race, ethnicity, and juvenile justice: Is there bias in post-arrest decision making? In D. F. Hawkins & K. Kempf-Leonard (Eds.), Our children, their children (pp. 300–347). Chicago, IL: University of Chicago Press. U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention. (1987). Census of Public and Private Juvenile Detention, Correctional, and Shelter Facilities, 1986–1987: [UNITED STATES] [Computer file]. Ann Arbor, MI: Inter-university Consortium for Political and Social Research. doi: 10.3886/ICPSR08973

130

UNDERSTANDING INDIVIDUAL YOUTH

Villarruel, F., & Walker, N. (2002). Donde esta la justicia? A call to action on behalf of Latino and Latina youth in the U.S. justice system. Building Blocks for Youth. Accessed online at www.buildingblocksforyouth .org/Full%20Report%20English.pdf Wald, J., & Losen, D. F. (2003). Defining and redirecting a school-to-prison pipeline. New Directions for Youth Development, 99, 9–15.

Ward, G. K. (2001). Color lines of social control: juvenile justice administration in a racialized social system, 1825–2000. Dissertation Abstracts International, 62(10), 3582-A (UMI No. DA3029453). W. Haywood Burns Institute. (2009). Successful strategies to reduce racial/ethnic disparities in JDAI jurisdictions. Training curriculum, available at www.burnsinsti tute.org.

Juvenile Justice: Advancing Research, Policy, and Practice Edited by Francine T. Sherman and Francine H. Jacobs Copyright © 2011 John Wiley & Sons, Inc.

CHAPTER

7

The Role of Gender in Youth Systems: Grace’s Story F R A N C I N E T. S H E R M A N

AND

J E S S I C A H. G R E E N S T O N E

O

ver the past two decades, the proportion of girls in the juvenile justice system has steadily increased; from 1999 to 2008, arrests of girls decreased less than their male counterparts in almost every offense category, and for some crimes, arrests of girls increased while those of boys decreased (Puzzanchera, 2009). Reacting to this growth and to the recognition that juvenile justice systems were designed for male offenders, since 1992 the Juvenile Justice Act has mandated that jurisdictions examine their systems and develop plans for providing needed gender-specific services to address the prevention and treatment of delinquency in this growing female population. This federal call to action has prompted research leading to a much deeper understanding of girls’ developmental needs, the circumstances that bring girls into contact or render them at risk of being in contact with the juvenile justice system, and how these needs and circumstances influence girls once they are in the system (Acoca, 1999; Bloom & Covington, 2001; Cauffman, 2008; Office of Juvenile Justice and Delinquency Prevention [OJJDP], 1998; Sherman, 2005). We now can identify a constellation of developmental and societal factors pushing girls into the juvenile justice system. We are also learning that public systems play an

inadvertent role in criminalizing girls’ behavior, and can work against girls’ successful reentry into the community and independent adult life (Sherman, 2005). This chapter examines a “typical” case of a multisystems-involved teenage girl, “Grace,” considering the role gender-responsive principles played in case decisions and services in the child welfare, delinquency, and legal systems. By examining how the respective players in Grace’s case viewed her and reached decisions in her case, and how Grace herself views these decisions, we hope to shed light on how systems might understand and implement gender-responsive principles so as to improve their structure and services for girls. We begin with a review of the literature describing the social characteristics of girls in the juvenile justice system and the ways these factors predict their system entry, including the role system practices and policies play in girls’ entry and course of stay in the juvenile and criminal justice systems. Next, we describe our case study methodology, including the gender-responsive principles that frame our analysis. We then introduce Grace and analyze the interview data from Grace’s case study using the framework provided by literature on gender responsiveness.

131

132

UNDERSTANDING INDIVIDUAL YOUTH

SYSTEM-INVOLVED GIRLS: CHARACTERISTICS AND PREDICTORS OF SYSTEM INVOLVEMENT The literature on the role gender plays in youth system involvement describes disparities in the degree and way girls and women are affected by particular social circumstances or problems (Mead, 2001).1 It demonstrates how risk factors and difficult life circumstances are often interrelated (Ravoira, 2005), with these variables continuing to influence one another throughout the life span. In this review we focus on family discord, victimization, mental health problems, and risky sexual behaviors because delinquent girls are disproportionately affected by these problems. We also examine the quite extensive literature suggesting that girls are differentially affected by some of the structures, policies, and practices common in youth-serving systems; the literature concludes, as do we, that gender-responsive programs, services, and policy reform are critical to achieving better outcomes for these girls. Family Discord While there is a tendency for family distress to be present in the lives of both female and male delinquent youth, female delinquent youth are more likely to come from family environments characterized by strife (Lederman, Dakof, Larrea, & Li, 2004; Timmons-Mitchell et al., 1997). Tension in parent–child relationships that sometimes becomes violent can result in girls being arrested for assault or domestic battery (Sherman, 2009; Zahn, Brumbaugh, et al., 2008), or for status offenses such as running away (Acoca, 1999; Chesney-Lind 1

Portions of this section originally appeared in Jacobs, Oliveri, and Greenstone (2009).

& Okamoto, 2001). Family-based risk factors may also include lack of communication (Bloom, Owen, Deschenes, & Rosenbaum, 2002ab), experiencing the death of a parent or sibling, and lack of stability leading to foster care or other arrangements (Acoca, 1999). Conversely, one study identified family strengths, such as good communication and structure, as a major protective factor for girls (Bloom et al., 2002b). As a result of living in these homes, girls are likely to enter the child protection system, which can be a pathway into the delinquency system. In their study of the links between foster care and detention, Conger and Ross (2001) found that youth in foster care in New York were more likely to be detained by the juvenile court than nonfoster youth, after controlling for offense and demographics. This “foster care bias” was significantly more pronounced and more difficult to remedy for girls than boys, so that 20% of the girls detained during the study were in foster care as compared with 10% of the boys. The researchers attribute this to girls frequently going AWOL from foster placement, leading them into detention, due to both a lack of appropriate alternatives and laws allowing secure detention for violations of a valid court order in a status offense case (Juvenile Justice and Delinquency Prevention Act [JJDPA], 2002). Even detention decisions based on more objective risk assessment instruments can be biased against girls who are given additional points for histories of running away and resulting warrants, making it more likely that they will be detained (Sherman, 2005). Victimization While there has been a good deal of variance in empirical findings of the proportion of delinquent and system-involved girls who

The Role of Gender in Youth Systems: Grace’s Story

have suffered sexual abuse and resulting trauma, the evidence is unequivocal that a history of abuse and posttraumatic stress disorder (PTSD) affects a significant number of girls in this population (Chesney-Lind & Okamoto, 2001; Lederman et al., 2004; see also Braverman & Morris, Chapter 3, this volume) and is often a catalyst for their interactions with the criminal justice system (Acoca, 1999; Chesney-Lind & Okamoto, 2001). Early sexual abuse is common among girls victimized by commercial sexual exploitation of children (CSEC), the subject of significant federal and state attention since 2000. In 2008, girls comprised 76% of juvenile prostitutionrelated arrests (Puzzanchera, 2009), and girls victimized by CSEC are routinely detained in the juvenile justice system despite general recognition of their victimhood and the trauma associated with detention (Lynch & Widner, 2008; Sherman, 2005). Juvenile justice system involvement in these cases results from the lack of alternatives, an overemphasis on law enforcement, fear for the welfare of girls who are victims of CSEC, and the failure of systems to collaborate toward cross-system, gender-responsive solutions (see Sherman & Goldblatt Grace, Chapter 16, this volume). Zahn, Hawkins, Chiancone, and Whitworth, (2008) contend that while girls are more likely to have experienced sexual assault, rape, or sexual harassment, suffering neglect or physical or sexual abuse is a risk factor for delinquency for both boys and girls. Some find, though, that a history of abuse during childhood or adolescence is a more powerful predictor of delinquent behavior for females (Cauffman, 2008). Abuse histories in girls may be linked to mental health disorders such as depression and anxiety disorders (Bloom, Owen, & Covington, 2003; Goodkind, Ng, & Sarri, 2006; Sherman, 2005), or may manifest in girls as externalizing disorders

133

such as aggressive behavior (Sherman, 2005). Abusive experiences in the past may also affect girls’ emotional adjustment and their ability to trust others, and may be a factor in substance abuse (Bloom et al., 2002b). Victimization and trauma is also a major catalyst leading girls to run away from home, which is a frequent cause of arrest for female delinquents (Bloom & Covington, 2001; Chesney-Lind & Okamoto, 2001); some claim, indeed, that the system is punishing girls for being victims of abuse (Goodkind et al., 2006). Victimization in the home has become a pathway into the delinquency system for girls as an unintended result of changes in law enforcement practices for domestic violence. Zahn, Brumbaugh, and colleagues (2008) attribute the increase in girls’ arrests for assaults over the last decade in part to this change in law enforcement practices. From 1999 through 2008, girls’ arrests for assault increased 12%, while boys’ arrests declined 6%, and girls’ arrests for aggravated assault declined 17%, while boys’ arrests declined 22% (Puzzanchera, 2009). While same-sex peers are the most common victims of both girls’ and boys’ aggression, family members are the second most common victims of girls’ aggression, confirming that much of girls’ violence occurs in the context of a chaotic home. At the same time, many jurisdictions require arrest or detention when police are called to a home for domestic violence, and many in law enforcement report arresting teenage girls involved in home violence rather than arresting the mother, who has responsibility for other children. These reports are confirmed by detention data that show girls comprising a larger proportion of detentions for domestic violence and assaults than of detentions overall (Sherman, 2009). Through these mechanisms, girls’ victimization is criminalized, driving them into the juvenile justice system.

134

UNDERSTANDING INDIVIDUAL YOUTH

Mental Health Problems

Risky Sexual Behavior

Multiple studies conclude that mental health problems are central in the lives of a large segment of the female delinquent population. Mirroring the general population, females involved in the juvenile justice system are more likely than their male counterparts to be affected by psychological illness (Alemagno, Shaffer-King, & Hammel, 2006; Cauffman, Lexcen, Goldweber, Shulman, & Grisso, 2007; Sherman, 2005; Teplin, Abram, McClelland, Dulcan, & Mericle, 2002; Timmons-Mitchell et al., 1997; see also Braverman & Morris, Chapter 3, this volume), and this disproportion is significantly exacerbated in the juvenile justice population (Cauffman et al., 2007). Girls are especially affected by internalizing disorders such as depression and particular anxiety disorders (Corneau & Lanctot, 2004; Lederman et al., 2004; Teplin et al., 2002; Zahn, Hawkins, et al., 2008). Unlike trends in the nondelinquent population, female offenders also outnumber male offenders in rates of externalizing disorders (Cauffman, 2008). A high incidence of comorbidity of mental health disorders has been found in several studies (see Braverman & Morris, Chapter 3, this volume). The presence in the delinquency system of significant numbers of youth, and particularly girls, with mental health disorders is associated, in part, with the failures of child welfare, mental health, juvenile justice, and public health systems to identify and treat these youth in their communities. Those failures have been linked to inadequate state Medicaid plans (Rosie D. v. Romney, 2006), poor mental health screening (see Braverman & Morris, Chapter 3, this volume), and an ongoing failure of youth-serving systems to cross traditional agency lines to develop comprehensive care plans and wraparound community-based services for youth (see Ross & Miller, Chapter 17, this volume).

Girls in the delinquency population often engage in risky sexual behavior that may be explained in part by their high rates of sexual abuse (Bloom et al., 2002b; Goodkind et al., 2006; Kelly, Owen, Peralez-Dieckmann, & Martinez, 2007). Girls’ first and subsequent sexual interactions are often with an older male partner (Acoca & Dedel, 1998; Guthrie, Hoey, Ravoira, & Kintner, 2002; Lederman et al., 2004). Sexual debut may also occur at young ages among system-involved girls; in one study involving girls ages 12–18 who were at risk for recidivism, the mean age for first sexual intercourse was 13.9 years (Guthrie et al., 2002). Evidence on safe sex practices and rates of sexually transmitted diseases is inconclusive, yet these issues are undoubtedly a major concern among youth in this population (Lederman et al., 2004). Race and Class Incarcerated girls and their male and adult counterparts are disproportionately people of color, especially African American and Hispanic (Acoca, 1999; Bloom & Covington, 2001; Chesney-Lind & Okamoto, 2001; see also Holsinger, Chapter 2, this volume) and frequently come from high-poverty backgrounds and communities (Bloom & Covington, 2001). Thus, the role of race and class in girls’ pathways into the juvenile justice system is important to consider.

GRACE’S CASE STUDY Case study analysis investigates, in depth, a contained example, or examples, of a phenomenon of interest to understand characteristics and processes that might pertain

The Role of Gender in Youth Systems: Grace’s Story

beyond that example; cases that are considered “typical” are commonly chosen (Stake, 1995; Yin, 1994). Consistent with this principle, Grace was chosen because her story reflects many of the elements and predictors of system involvement described in the literature. This was a mixed-methods case study utilizing legal and state agency records and qualitative interviews as data. Agency, court, and attorneys’ records were reviewed to construct a timeline of the major events in Grace’s case. The records provided historical data and baseline knowledge about the case, and allowed us to develop preliminary hypotheses regarding the relevance of Grace’s gender in various case components. However, records alone would not have provided sufficient material for this study because we were interested in the role of gender, which was not an explicit focus of the records (Hodder, 2003). In addition, Grace’s voice was not chronicled in written records, and her subjective experiences as a system-involved girl were essential to our study of the role of gender and gender-responsive principles in her case (Mason, 2002). In addition to Grace, four key players in Grace’s case were invited to participate in semi-structured interviews, the protocols for which were informed by the records as well as the literature on gender-responsive principles. Interviewees reflected on past experiences, and in the process of doing so engaged in a reinterpretation of those experiences through their current knowledge (Lawler, 2002). Interviews with Grace developed her personal narrative, her views of the system and its representatives with whom she interacted, and the role of gender-responsive principles in her case. Through interviews with Grace’s caseworkers from the juvenile justice and family service systems, a juvenile justice system administrator at the time of her case, and one

135

of her attorneys, we sought to gain insight into whether and how gender-responsive principles were incorporated into decisions made in her case and what might have been improved. In total, seven interviews with six individuals were conducted between July and September 2009. We used qualitative data analysis software to code interview transcripts and aid in theory building (Weitzman, 2003), identifying themes, and conducting interpretive analyses of the connections among the themes and the links within these themes across data sources (Ryan & Bernard, 2003). Within this chapter, we present quotes from our interviews as examples of those themes (Ryan & Bernard, 2003) we consider representative of the viewpoints expressed by study participants (Mason, 2002). Grace’s Story Grace is, in many ways, typical of girls described in the literature. She is African American and lived as a young girl with her family in a housing project in a large northeastern city. Her father was not named on her birth certificate and not involved in her childhood, although she knows who he is. Her family is close-knit, comprised of her mother, two sisters, an aunt and uncle, a grandmother, and cousins, all of whom live in close proximity to one another. Those who have worked with Grace have described her as intelligent, outspoken, and caring. Her family and friends look to her as a support and confide in her. She is the first to identify and speak out against injustice, and despite the difficulties she presented as a client, her caseworkers remember her fondly and describe her as kind, engaging, and resilient. Her childhood with her mother—who was diagnosed with bipolar disorder, abused drugs, and neglected her daughters—was

136

UNDERSTANDING INDIVIDUAL YOUTH

marked by chaos and violence. Many reports of abuse and neglect were filed with the state Department of Family Services2 (DFS) and social services were provided to the family. When Grace was 11 years old, she and her sisters were removed from her mother’s custody and given to their maternal grandmother, who had a drinking problem and was later arrested for assaulting Grace with a hammer. A report of abuse was filed, and shortly thereafter they were removed from her home. They were often placed in separate foster homes. For the next 2 years, Grace and her sisters moved in and out of foster care and their grandmother’s home. Their mother had little to do with them during this period. Grace, who has since been clinically diagnosed with a mental health issue, became identified for her difficult behaviors by the agency and courts. She was moved among foster homes in part because her behaviors were difficult for foster parents to manage. When Grace turned 14, she was placed in foster care in a city 2 hours distant from her family home. She perceived this placement, far from her family, as punishment, and began to have more serious behavioral problems. Shortly after this placement, she was charged with assault and battery on a public employee and disturbing school assembly. It was her first, and would be her only, delinquency or criminal charge. She was expelled from school and, following an incident in which she stepped in front of a bus, was placed in a psychiatric hospital for evaluation. Grace was placed on probation and moved back to her home city, living in a series of foster homes, emergency shelters, and residential placements. She received education in the residential placements but not when she was 2

The agency names, like the parties’ names, have been changed to preserve anonymity.

in the community. Grace would frequently run from her foster homes to her grandmother’s home. During this time, she became pregnant and miscarried. The case began to focus more on her mental health as her behaviors became more clearly dangerous to herself. Because her probation conditions were to comply with DFS, the court found her in technical violation of probation and committed her to the Department of Juvenile Justice (DJJ). Grace was now 16 years old. For the next 18 months, DFS and DJJ struggled over control of Grace’s case. Grace continued to be placed in a series of foster homes and residential placements, but now she was also placed in secure detention when she technically violated her release conditions by running away or breaking curfew. Despite this, she continued to run to her grandmother’s home with the resulting warrants and detention. During the 2 years from ages 15 to 17, Grace was placed 44 times and spent 426 days—over half that period—in detention. During this time, the agencies made sporadic efforts to enroll her in education or career training programs and otherwise direct her toward a productive future. She was enrolled in an alternative school from which she was regularly suspended for “ . . . unsafe behavior, verbal inappropriateness, refusal to follow directions, and creating an unsafe environment . . . ” (DFS records). She was also seen by a psychiatrist and placed on medication for depression, which was becoming more acute. Seven months before she turned 18, Grace attempted suicide and, at her request, was placed in a hospital psychiatric unit where she remained until her 18th birthday. During these 7 months, DFS and DJJ were joined by the hospital and the Department of Mental Health staff in the struggle over Grace. Upon her hospitalization, a law school clinical

The Role of Gender in Youth Systems: Grace’s Story

program also began representing her to seek education services and plan for her transition to adulthood. At age 18, Grace “aged out” of the system but agreed to post-18 services with DFS. Although she was seeking funding for independent living, she was placed in a foster home with conditions, and 6 months later DFS terminated her over-18 services for an alleged violation of those conditions. Grace is now 24 years old. She has two children and lives with them in an apartment in her home city. The children attend day care when Grace is attending a trade school, where she is doing well in her studies. Her mother and sisters are a regular feature in her life and continue as both a source of support and a drain on her limited resources.

GENDER-SPECIFIC AND GENDER-RESPONSIVE: GUIDING PRINCIPLES The terms gender-responsive and gender-specific are often used interchangeably in the literature and, at a basic level, describe services that strive to satisfy girls’ unique developmental needs, personal characteristics, and life circumstances.3 In the case of delinquent girls, this includes understanding their pathways into the system, the multiple risk factors associated with their system involvement, and how these factors interact with one another (Bloom & Covington, 2001; Bloom et al., 2003; Morgan & Patton, 2002; OJJDP, 1998; Ravoira, 2005; Sherman, 2005). Programs defined as genderresponsive are not only characterized by serving a population that is all female or by having female staff (Acoca & Dedel, 1998; Ravoira, 3

Portions of this section originally appeared in Jacobs, Oliveri, and Greenstone (2009).

137

2005; San Francisco Commission on the Status of Women, 1999); they also recognize unique experiences associated with being a female in the juvenile justice and related youth systems and deliberately use this knowledge to inform all components of the program (Bloom et al., 2003; Morgan & Patton, 2002; OJJDP, 1998; San Francisco Commission on the Status of Women, 1999). Services are delivered with empathy for the past and current challenges faced by participants, with an emphasis on the importance of relationships for girls (Bloom et al., 2003). Although somewhat diluted in the 2002 reauthorization, since 1992 Congress has endorsed the need for gender-responsive approaches through the JJDPA (2002). Core Considerations in Girl-Targeted Programs and Practices There are several overlapping principles for gender-responsive practices and programming in the juvenile justice population, some of which derive from empirical studies or observations emerging from applied work (see, for example, Acoca, 1999; Bloom, Owen, Deschenes, & Rosenbaum, 2002a; Mead, 2001; Ms. Foundation for Women, 2000, 2001; Ravoira, 2005; San Francisco Commission on the Status of Women, 1999; Wheeler, Oliveri, Towery, & Mead, 2005). Others are rooted in theoretical perspectives related to female development (see Bloom & Covington, 1998; Bloom & Covington, 2001; Goodkind, 2005; Maniglia, 1996). Still others are drawn from secondary analyses of empirical data collected by other researchers. Gender-responsive principles for girls’ services in the juvenile justice system include safety and safe spaces, attention to relationships, and a collaborative approach wherein power is shared across systems and with the girl. These

138

UNDERSTANDING INDIVIDUAL YOUTH

are the gender-responsive principles about which we asked research participants when thinking about their agency’s involvement in Grace’s case. Safety and Safe Spaces Creating safe and supportive spaces is a key dictate of girlfocused programs and services, but how safety is defined varies. One dimension of safety is physical (Bloom & Covington, 1998, 2001; Bloom et al., 2003; Mead, 2001; Morgan & Patton, 2002). Women and girls are subjected to various forms of male violence in private and public spaces (Mead, 2001), including unwanted sexual contact (Alemagno et al., 2006). Considering the prominence of abuse victimization and trauma among system-involved girls, it is especially important that features of juvenile justice treatment programs, services, and practices do not mimic or perpetuate qualities of abusive relationships or conditions that many young female delinquents have experienced in their lives (Acoca 1999; Bloom et al., 2003; Goodkind, 2005; Sherman, 2005). Same-sex staff and supervision are important elements to consider in creating a safe environment for female offenders (Sherman, 2005). Emotional and intellectual safety should also be considered. Within the program environment and the system, participants should feel comfortable expressing their emotions, beliefs, goals, and fears, contributing their ideas and exploring new points of view and areas of interest. Safe and nurturing environments allow opportunities for building skills that are consistent with girls’ interests, but that are not limited to those traditionally associated with being a girl. Female-focused programs and services can then encourage individual growth and development instead of being driven by stereotypes (Levick & Sherman, 2003).

Attention to Relationships Developmental research on girls has emphasized the role of relationships and care in girls’ perspectives on what is important in life and the choices they make at critical moments. Due partly to their socialization into caretaking roles, research suggests that women tend to protect their bonds with others, choosing connection over independence (see, for example, Brown & Gilligan, 1992; Chodorow, 1974; Gilligan, 1982). In their recommendations for genderresponsive programming and practices, many refer to this research, urging that programs for girls and juvenile justice system practices consider the centrality of relationships in girls’ lives by providing opportunities for connection with adult individuals and services in the program context itself, and in girls’ communities (Bloom & Covington, 2001; Bloom et al., 2002a, 2003; Hubbard & Matthews, 2008; Maniglia, 1996; Morgan & Patton, 2002; San Francisco Commission on the Status of Women, 1999; Sherman, 2005). These may be lacking if girls’ family lives are chaotic or troubled (Alemagno et al., 2006; San Francisco Commission on the Status of Women, 1999). Collaboration and Shared Power The principle of collaboration and shared power applies both to sharing power with youth and to collaboration across systems. Regarding collaboration with youth, this principle includes allowing girls to participate in program design and leadership—indeed, having their input guide its course (Denner & Griffin, 2003; Mead, 2001; Morgan & Patton, 2002; Ms. Foundation for Women, 2001; Wheeler et al., 2005). Bloom and Covington (2001) contend that gender-responsive programs should aim to empower their participants. Goodkind and colleagues (2006) recommend programs to help girls not only

The Role of Gender in Youth Systems: Grace’s Story

cope with the negative effects of trauma, but also develop a sense of agency and control over their lives. Correspondingly, Sherman (2005) and Goodkind (2005) argue that such programming should be strengths focused, not deficits focused. This can include the active involvement of girls in decision making about their treatment course (Sherman, 2005), so that girls act in collaboration with staff to determine appropriate services. Collaboration and shared power across systems is important in girls’ cases because many are simultaneously involved with more than one youth-serving system, having a set of needs that cross traditional agency lines. Bloom and colleagues (2003) also encourage partnerships with community organizations to provide multilevel support to female offenders aimed at their life circumstances and challenges, which is critical to their successful reentry and longterm success in their communities. Given girls’ multiple needs, the failure to work across systems has been shown to result in detention of girls disproportionate to their male counterparts and to their conduct (Conger & Ross, 2001). While service delivery across systems and in collaboration with communities is difficult (see Farrell & Myers, Chapter 21, this volume; Ross & Miller, Chapter 17, this volume), states’ recent use of Medicaid support for juvenile justice–related evidence-based practices that involve multiple state and county agencies seems promising (Hanlon, May, & Kaye, 2008).

GENDER-RESPONSIVE PRINCIPLES IN GRACE’S CASE This section examines the role of genderresponsive principles in Grace’s case. Specifically, the themes of safety, relationships, and collaboration and shared power are discussed.

139

Quotations from Grace’s interviews organize our analysis. Safety: “You Really Do Lose Yourself Through All the Chaos” The system representatives interviewed about Grace’s case, including DFS, DJJ, detention, and her lawyer, each underscored ensuring Grace’s safety as a guiding principle in their decision making, but in their emphasis on her physical safety as opposed to emotional safety, they differed from Grace. She defined safety: Like a shield of protection obviously, that’s what safety is I guess. You don’t have to worry about being alone or being scared, if you are scared, there’s someone to speak to. . . . Moreover, although system informants expressed concern with Grace’s emotional safety—that she feel safe—their understanding of what feeling safe meant to her was limited. Physical Safety Informants agreed that the greatest risks to Grace’s physical safety were her running away, hurting herself (self-cutting or suicide attempts), and sexual exploitation. Although Grace did not perceive these factors to be risks at the time, in retrospect she acknowledges them and even credits DJJ with pulling her back from the brink: “DJJ keeping me off the streets was a big plus because I was aiming to die.” DFS and DJJ tightened rules and used detention in an effort to keep Grace physically safe, trying to “keep her close and being a little more strict” (DJJ caseworker). Both the DFS and DJJ caseworkers described their agencies’ reactions to Grace’s safety risks similarly, conflating caring for her with being tough and strict. The DFS caseworker stated:

140

UNDERSTANDING INDIVIDUAL YOUTH

Due to her serious history with regards to risky behaviors and things like that, the system always wanted to react in a way that really, you know, came down hard on her, sheltered her or made rules for her that she had to follow. Similarly, the DJJ caseworker stated: I think we were hard on Grace because of the worry we had with her safety, so we had higher expectations for her. So a girl who was a runaway, who doesn’t have the cutting or the suicide and those things going on, you’re gonna . . . consider them a runaway with emotional issues, but her, we tried to keep, I remember, as tight of a rein as possible because [of] being concerned about everything from pregnancy to possible prostitution. This focus eclipsed all other case goals, fed a crisis mentality in Grace’s case management, and restricted forward movement in her education and her ability to exercise autonomy in decision making. For example, DJJ placed Grace in a DJJ school located in its day reporting center, although Grace wanted to enroll in the public school. The DJJ caseworker described the decision as a reaction to concerns over Grace’s physical safety. Although the system was trying to protect her, Grace felt increasingly vulnerable and powerless in the face of what she saw as arbitrary system restrictions. Her explanation for running away, a behavior perceived as dangerous by the system and one that caused escalating restrictions, illustrates this: Why did they move me all the way to [a city two hours from my home]?

That’s how I felt, you just up and snatched me one day and moved me away. I didn’t get any warning or anything, I had to just completely separate from my family, like even if they weren’t the greatest family, they’re still my family and I wanted to stay closer to them than some strange new place because it felt like forever to get there and then, I don’t know, I never saw it as a safety concern, but now, it’s like I’m an adult and it’s like, anything could have happened to me. But I still always ran away. For Grace, emotional safety and physical safety cannot be disentangled, but neither was stable, and emotional safety in particular was largely absent during her teens. Her feelings of isolation and vulnerability colored her experiences, dictating much of her behavior. Although her early childhood at home clearly played a role, Grace blamed system practices for her feelings of lack of safety. Emotional Safety Grace’s definition of safety is informed by her experience as a foster child: You really do lose yourself through all the chaos. I say chaos because you’re jumping from one place to another, you’re sleeping in one bed to another bed. Then you have, you know, one DFS [placement] to another DFS [placement], one judge to another judge, one court system to another court system, and then you’re locked up. It’s dizzy[ing]. Have you ever been in a fight, and you don’t even know you’re fighting? . . . My life went so fast, and it could have went a little

The Role of Gender in Youth Systems: Grace’s Story

slower, if someone had stopped and slowed me down a little bit. Those frequent moves frightened her because they were unpredictable; they separated her further from her family; and many of the foster parents did not provide emotional nurturance when Grace needed it. She describes the impact of these frequent and unpredictable residential moves on her sense of well-being: . . . it’s like now you’re feeling lonely, you’re just, I don’t know, you’re a feather in the wind, wherever you land for that moment is where you stay until the wind blows again. You’re on the go, you have no idea where you’re going, and you have no idea how long you’re gonna be there, but you’re there until it’s time to go. Because it’s always time to go. . . . Although she acknowledges that hers “weren’t the best family,” and that living with her mother could be dangerous, she wanted to be with her family and, as a system-involved teen, ran to her grandmother or to be closer to her sisters. Despite their limitations, she felt safe with her family because they were a known quantity and she could be herself with them: I would prefer to be with my family more than a foster home. I mean you could sleep easy, not feeling like someone is gonna do something, or you don’t know what is gonna happen next, and plus you know what to expect from your family, aside from someone new you’re like, “Oh God, I have to start all over.”

141

When she expressed vulnerability or asserted herself, Grace describes her foster parents and the family services system as rejecting her. Thus, she could not express the feelings of loneliness and depression she was having for fear of additional placements. “I’ve been in foster homes where I cut myself and they’re like, ‘Oh no, you can’t stay here.’ And it’s like, ‘next.’ So I just ran away. They didn’t care, not the foster parents anyway.” Showing her real personality as an outspoken teenager seemed to lead to problems as well. I got kicked out of her foster home. This is when I was supposed to be taking college courses. My plan was to go to [name of college]; I had straightened up. This was after I asked to go to the hospital; usually they have to fight me to go. I asked to go, I spent all these months in the hospital, I get out, I’m doing the right thing, I’m taking my medication, I just got a job at Walgreens, I’m not smoking weed. I’m doing the right thing. But because all of us girls are so scared, everyone has a voice but everyone is scared to confront the foster mother. So, me, I’m the leader, I’m gonna say it, because I’ve been going through this long enough, you know. So I speak up, she calls the DFS worker, which I didn’t even know changed. I get kicked out of the foster home. Grace came to believe that her changes in placement were prompted by her selfexpression, whether of sadness or independence, and this further threatened her feelings of emotional safety as well as prompted insecurity about her identity. She felt punished for speaking out or expressing her fear and

142

UNDERSTANDING INDIVIDUAL YOUTH

sadness, as it always seemed to result in a placement change. Grace’s description of the system personnel with whom she felt safe highlighted the value she placed on authenticity and on people who took the time to understand who she really was. Here, she describes a nurse in the psychiatric hospital: I forgot her name, I just still call her the army nurse because she never cracked a smile and I wrote a few composition notebooks back to back, what was gonna be my book, and it was like maybe five composition notebooks that I just wrote, and she was the only one that read it . . . because they didn’t have a therapist there at the hospital at the time, and she looked at me when my sisters came and she’s like, ’cause I had to give them money to come see me at the hospital basically, and she’s like, don’t let the way other people are change who I am. Now mind you, she never smiles or says anything to anyone, it’s “If I say get in the room, get in the room, or you’re going down.” She had no problems doing restraints, but I felt safe with her. Similarly, though she says her commitment to DJJ was a bad experience because it resulted in months of lost time in detention, she says she felt safe in detention because she did not face rejection from the staff for being herself, and did not have to conceal her identity with girls who shared her experiences. . . . when you’re locked up, you have no choice but to be you. I mean if you want to spaz out then go for it, you know you’re just going to be

restrained . . . and then they talk you back down. DFS, on the other hand, you spaz out, you’re gone. There is no one to rub your back or try to understand or help you understand what’s going on with you, I mean you’re just gone. And you’re in the next place, no one goes over what just happened and you’re in the next place. The director of detention saw that Grace was struggling without an outlet for her feelings but was constrained because, although Grace spent many months in detention, the facility was not designed for treatment: . . . she kind of conformed, but I think as she wasn’t really addressing what was really going on with her or the system in general wasn’t really addressing it, and detention isn’t the place to address that, I mean we’re not treatment, that’s not our service. She started to struggle more and more. Although DFS, DJJ, and her attorney recognized that Grace did not feel safe, they could not appreciate the enormity of her fears and the many ways in which fear influenced her behavior. Her attorney recognized that Grace’s traumatic family experiences continued to affect her deeply: Grace is still grieving the loss of her family and nobody got that. It never was about Grace having been taken from her mother and then taken from her grandmother and all of the losses she had experienced, and separated from her sisters, and it was all about her deficits. So I think that somebody who was more connected to . . . her

The Role of Gender in Youth Systems: Grace’s Story

community could have, there’s no guarantee, but could have been able to see her assets and try to build on those assets. Her DJJ caseworker connected her need for emotional safety to her need for stability, particularly a stable placement. She believed Grace would find that stability only with her family but was constrained by DFS (which did not support family placement) and the housing authority (which prohibited Grace from living with her grandmother in subsidized housing). The DFS caseworker also saw Grace’s need for nurturing and saw that as a particularly strong need for girls. She believed that the system did not provide it because they viewed Grace as a criminal (despite her minor delinquency). Despite that view, however, the caseworker did not connect her need for a nurturing relationship to her feeling unsafe. The disparity between the system’s primary focus on physical safety and Grace’s primary focus on emotional safety led to neither being sufficiently addressed, and to system measures that led Grace to perpetuate the very behaviors the system aimed to thwart, such as running away and self-harm. These measures also alienated Grace, making her feel vulnerable to rejection and unable to be herself, feelings that fueled dissatisfaction with system decisions, and tensions in her relationships with system representatives. Relationships: “It Felt Like the Whole World Just Left Us Naked” Relationships play a central role in Grace’s system experiences and are closely associated with her struggles with identity and emotional safety. The central role of relationships in

143

Grace’s life may be rooted in the early loss of her mother and family and her moves in and out of foster homes and detention. Those in the system who worked with Grace recognized the centrality of relationships for her, and for girls generally, yet the system’s judging and rule-bound approach to services made it difficult for individuals working with her to form relationships that Grace saw as authentic and valuable. The systemic challenges to authentic relationships were unfortunate, both because they proved counterproductive to Grace’s success and because, at least in Grace’s case, those relationships would have been relatively easy to establish and nurture: All our informants seemed genuinely to like her for her many endearing qualities as well as her strength of personality and apparent resilience. It is as though the system got in the way of these individual relationships rather than having facilitated them. Loss of Family Relationships Grace’s own accounts, as well as those of her agency workers and her attorney, suggest that her experience of abandonment by her mother and later her grandmother, and the instability of her family life, were replicated throughout her system involvement, as she was moved from placement to placement in the system. Grace describes the early underpinnings of her need for supportive and reliable relationships: . . . that’s where the depression came from, feeling like I was lonely. . . . You lose hope really easy when you don’t have someone. I mean your first love is your mother’s, I mean that’s where you spend your first nine months . . . same heartbeat, you’re sharing it all. When your mother gives up on you at such a young age, it’s like a chicken, you know

144

UNDERSTANDING INDIVIDUAL YOUTH

the baby chicken, you don’t have fur at first, it’s like you’re naked to the world. Your mother’s wings are supposed to keep you warm and protected until you, you know, develop those feathers. It felt like the whole world just left us naked. Through Grace’s frequent moves within the system, she repeatedly relived this loss, loneliness, and experience of abandonment. From Grace’s perspective, these moves were the result of foster parents and caseworkers seeing her as flawed or at fault, a notion that was largely corroborated by those who worked with Grace during her system involvement. Her DFS caseworker remembered: . . . she would say that she wants to go to [a job training program] and everyone would get behind it and there were allsortsoflogisticalthingsthatneededto be worked out and we’d work really hard on itand then I thinkshewould just change her mind or she would call one day and be like, “That’s not what I want anymore. Now I want to do this.” And she was a little bit scattered about it, and so that made the system sort of react, “Oh now we did all this work and now you’regonnachangeyour mindafterwe did all that.” You know what I mean? That’s what ended up happening to her a lot, so I think in the end, it just became about safety. It just became about her following the rules and if she didn’t, she was out, that type of thing. In a similar vein, her attorney described: . . . [Grace] exhausted people and they got fed up with dealing with her contentiousness if they knew

her or not. I think they would, you know, collaterals would hear from the DMH worker [who] I’m sure got an earful from the caseworker who maligned Grace for her demands, so nobody took the time, nobody who might have stepped out to the plate, took the time to kind of get to know her, I felt, and advocate for her. Institutional Obstacles Institutional obstacles to effective relationship building were apparent in Grace’s case as well. For one, the regulatory nature of most relationships Grace had with individuals in the system compromised their genuineness. There was no one whose role it was simply to build a relationship with her, mentor her, or provide her emotional support; rather, every relationship was characterized by unequal power, wherein significant consequences loomed when she disobeyed system rules. As explained by Grace’s DFS caseworker: . . . all of her connections were about people that set rules for her and it was whether or not she followed those rules. I mean she had a DJJ worker, a DFS worker, all these different foster homes, or all these different staff members at programs, and I remember her trying to foster relationships and she’d try to foster relationships with people and, you know, someone had to come down hard on her and tell her that she broke a rule and sort of tighten up the system on her. It was never an authentic thing. Grace suffered in this void of genuine personal connections, of relationships that were unconditional, wherein she would not

The Role of Gender in Youth Systems: Grace’s Story

face rejection for not following rules that seemed to her to be unduly punitive or to present her with unfair choices. Her overarching characterization of the agency representatives she encountered throughout her system involvement was that of a lack of effort or interest in knowing the “real” her but, rather, an effort to change who she was. Within these relationships, she felt misunderstood and sometimes voiceless. She stated: . . . try to understand this part of me, please hear what I’m not saying, not try to put your interpretation of what you want me to be inside my head. Let me tell you who I am because I’m forgetting who I am because you’re moving me around too much, I don’t know. Grace rarely saw her DFS caseworkers. The role had high turnover, and Grace says she was often not informed when her caseworker changed. One caseworker with whom Grace did have a longer-term relationship, who was interviewed for this study, went on maternity leave at a critical juncture in Grace’s case, when she was turning 18 and would “age out” of the system. In retrospect, everyone agreed this was a significant setback for Grace, who may have weathered the transition better had this caseworker been available to her. As her attorney explains: Grace gets a new caseworker, and I don’t know the level of experience this caseworker had, but she was going by the book and Grace doesn’t do things by the book, and so that was a critical event that really set Grace up to have the voluntary [post-18 services] fall apart. I mean that was certainly one piece of it.

145

There were other things, too. Where she was placed was not a great foster home for her. You know, the truth is she needed a lot more support than she thought she needed and that she wanted to have, and part of it was resources, what the department has to offer. Throughout her system involvement Grace rarely felt there was a good fit between her and the adults responsible for her. According to Grace, decisions made in her case were channeled through the foster parents with whom she was placed, rather than through her caseworkers. Due to her lack of connection to, and negative feelings about, the majority of her foster placements, this contributed to feelings of powerlessness and vulnerability; Grace felt like things were being done to her, without an opportunity to influence decisions that were made about her life. Positive Relationships in the System Although Grace’s relationships with system representatives were often contentious, she also seemed to inspire in many of these same adults feelings of empathy and a belief in her potential to succeed, and motivation to help her. Her DJJ caseworker recalled: I remember I worried about her a lot, like she was one of those girls you think about when you go home. You think about all of them, but you think about her because of her ability to be warm and friendly, and also care about you as a person. You know, generally some kids hate their caseworkers. She cared about me, like she’d always ask about my daughter, things like that.

146

UNDERSTANDING INDIVIDUAL YOUTH

Study informants described Grace as a young woman who clearly sought personal connections with others. She had stories to tell, and wanted someone to listen to, and help her work through, the emotions they surfaced. Her attorney reflected that when she first met Grace, Grace shared with her that she had miscarried twins. This immediately forged a personal dimension in their relationship. Her attorney explained: I mean I think she wanted me to react to her pain. She wanted me to be sympathetic to it and I was. I mean it was, I was thinking, “Oh my God. Thank God” that she wasn’t pregnant with twins and that was adding to the list of the things that she had to deal with. She was telling me about it because people around her weren’t grieving with her, so yeah, definitely. I think that was true with Grace in every interaction. It was first about the emotional; it was first about “This is what’s happened to me. I am so upset.” And it was always important for my first response to her to be “Oh Grace, I am so sorry,” and th