In the United States, as in most other societies, the rate at which young people engage in antisocial behavior begins to increase substantially around the time of puberty, often increasing by a factor of 10 and peaking during late adolescence or early adulthood (Moffitt, 1993). Although a small share of people engage in antisocial behavior at every life stage, from early childhood through late adulthood, for the majority of people the rate of criminal behavior declines steadily as they enter their 20s and 30s. The scientific study of adolescent development—particularly in neuroscience—may explain this pattern among the majority of people: that the parts of the brain sensitive to sensation seeking and peer influence are particularly active in puberty, while the executive functioning regions are not fully formed until the early 20s (see, e.g., Steinberg, 2014).
These patterns highlight the possible tensions between the different aims of the juvenile justice system, the criminal justice system, and the social service agencies and education system. Our society aims to help teens navigate this life stage in a way that promotes their successful maturation and helps them avoid events that can set back their future prospects. At the same time, our society wishes to ensure public safety by preventing violence and other types of crimes, a goal that is in many ways congruent with the goal of promoting adolescent well-being because so much of the crime committed by youth—particularly the most serious violent crimes—is against other young people (see, e.g., Cook and Laub, 1998). Moreover, a growing body of research highlights the adverse effects on education, mental health, and other outcomes from growing up in a community where violence is common (Sharkey, 2010; Sharkey and Elwert, 2011; Sharkey
and Faber, 2014). However, the goals of the three systems may also be in tension, to the extent that interventions designed to prevent future crime by offending adolescents—namely detention—can harm the future prospects of many youth who would not have re-offended even in the absence of the intervention.
The fact that not all teens are the same—that most would not re-offend, while a small share are “life-course persistent” in their criminal activity—means that ideally our social systems could individualize and tailor their treatment of youth. In the justice system, for example, this would amount to creating an analog of what is known as “precision medicine” and would provide services that enhance the prospects of successful development and reduce the risk of future offending rather than interrupting positive development or making it more likely that youth will re-offend. But society’s track record in making such behavioral predictions and in redirecting future trajectories in the desired way is not impressive.
The potential tensions among these different goals can be seen in society’s shifts over time in policies and practices pertaining to antisocial behavior by adolescents. As early as the late 19th century, it was recognized that juveniles are developmentally different from adults, which led to the first juvenile justice system being founded in 1899. These early reformers believed that young people were less capable of understanding the criminality of their actions and therefore required the guidance of the court rather than punishment (Institute of Medicine and National Research Council, 2001). In the years since the creation of the juvenile court, the pendulum of the juvenile justice system has swung back again, from paternalistic to punitive, with changes in due process and supervision that illustrate the tensions between punishment and rehabilitation. The current context for juvenile justice policy is based on advances in neurobiological science and adolescent development research. As awareness grows about adolescent development in general, and adolescent brain development in particular, there remains a persistent challenge to simultaneously support the healthy development of juveniles and preserve public confidence in public safety.
Chapter 2 of this report describes the scientific basis for our understanding that although adolescents may develop some adult-like cognitive abilities by late adolescence (roughly age 16), the cognitive control capacities needed for inhibiting risk-taking behaviors continue to develop through young adulthood (age 25) (McCormick et al., 2016). Furthermore, in comparison to adults, youth demonstrate a greater capacity for growth, may be more amenable to treatment, and may be more receptive to interventions that address deficiencies in their social environments (Scott and Grisso, 1997). The landmark report Reforming Juvenile Justice: A Developmental Approach (National Research Council, 2013) detailed the specific application of developmental science to the juvenile justice system. The purpose
of this chapter is to not repeat the work of that report, but to summarize key aspects of juvenile justice reform and relevant research over the past 5 years, and to identify opportunities for continued reforms.
The committee needed to address an important question regarding the scope of this chapter. In Chapter 1, we noted that, developmentally speaking, adolescence encompasses young adults as well as teenagers, and it might therefore be appropriate and within the committee’s charge to address the interactions of young adults with the criminal justice system. After all, the number of 18–25-year-olds in the criminal justice system (roughly 3.2 million arrests in 2010) far exceeds the number of youth under age 18 in the juvenile justice system (roughly 1.6 million arrests in 2010). However, the committee decided to focus on the juvenile justice system for the same reasons we focused almost entirely on secondary schools in Chapter 6. First, like the education system, the juvenile justice system is designed for adolescents and should be grounded firmly in developmental knowledge. By contrast, higher education (including technical education) and the criminal justice system are designed to address all ages and to effectuate much more complex social purposes. Second, this committee was not constituted to take on the challenges of reforming criminal justice and higher education, notwithstanding the observation that young adults ages 18 to 25 may sensibly be characterized as adolescents from a developmental point of view.
Moreover, other National Academies’ studies have recently addressed these two topics. For example, many important issues regarding young adults in the criminal justice system were addressed recently in the National Research Council’s report on The Growth of Incarceration in the United States: Exploring Causes and Consequences, which focused primarily on the adult criminal justice system (National Research Council, 2014a). The developmental significance of higher education and criminal justice for young adults was also addressed in the 2014 National Academies report, Investing in the Health and Well-Being of Young Adults (Institute of Medicine and National Research Council, 2015).
Although this report focuses primarily on the juvenile justice system, we touch on two developmentally significant issues regarding the criminal justice system. One is the prosecution of younger adolescents (under 18) in the criminal courts, and the other is a renewed policy interest in correctional programs focusing specifically on the needs of young adults.
A developmental approach to juvenile justice recognizes that delinquency occurs during a developmental stage when adolescents are more likely to exercise poor judgment, take risks, and pursue thrills, elements
of adolescence that do not uniformly result in delinquent behavior. A juvenile justice system centered on a developmental approach will respond to delinquent behavior with individualized, developmentally appropriate treatment and services that address the three guiding principles of the system—promoting accountability, preventing re-offending, and treating youth fairly—with an emphasis on rehabilitation. These points are outlined further in Box 9-1, but their three core goals and associated practices may be distilled as follows (National Research Council, 2013, p. 121):
- Promoting Accountability: Focus youth on repairing the social injury or damage, understanding how the behavior has affected other people, and take responsibility for their action.
- Preventing Re-offending: Provide a diverse array of activities, supports, and opportunities for normal growth (e.g., emotional, physical, intellectual) in environments that are appropriate to the ages and stages of the youth involved, and engage family and neighborhood.
- Fairness: Ensure youth participate in all proceedings, are represented by properly trained counsel, and are treated fairly and with dignity; intensify efforts to reduce racial/ethnic disparities; and develop strategies to reduce perceptions of bias or discrimination.
This developmental approach is critical to an effective juvenile justice system due to the distinctions between adolescents and adults. The key differences are that youth often lack the capacity for self-regulation in emotionally charged situations, have a heightened sensitivity to external influences such as peer pressure and immediate incentives, and show less ability to make decisions that require a future orientation (Icenogle et al., 2019). Another important feature is that adolescents are more keenly aware of injustices, and the appearance of unfairness will reinforce this perception. The literature suggests that “juveniles may be more likely to accept responsibility for less serious offenses early in the process if they perceive delinquency proceedings to be fair and transparent and any sanctions imposed to be proportionate to their offenses” (National Research Council, 2013, p. 130). As a result, the treatment of adolescents by the legal system may either reinforce a predisposition toward delinquent behavior or, alternatively, encourage respect and discourage re-offending. Hallmarks of a developmental approach, as outlined by the 2013 and 2014 National Academies’ reports are shown in Box 9-1.
Contributing to perceptions of unfairness in the justice system is the disproportionate representation of minorities at every stage. Young people of color “are more likely than White youth to be stopped, arrested, and subsequently referred to court by police” (National Research Council, 2013, p. 221). As a result, “Black youth perceive a high degree of police-instigated
discrimination, especially when they live in more racially integrated neighborhoods” (National Research Council, 2013, p. 113). Moreover, the structural and social contexts in which young people live are also relevant to understanding the disproportionate representation of minorities in the juvenile justice system. Neighborhoods that are economically disadvantaged often lack the public resources and supports necessary for youth to thrive. Health care facilities, high-performing school systems, recreation centers, and other community resources are critical for positive youth development, and studies suggest that youth are more likely to be arrested when raised in neighborhoods lacking these services (National Research Council, 2013, pp. 224–225). An essential purpose for a developmentally informed juvenile justice system is to reduce racial disparities to improve the fundamental integrity of the system and promote a sense of fairness among youth.
Further, the research led the 2013 committee to conclude that predominantly punitive policies and programs are ineffective for the majority of youth, as they neither foster prosocial development nor reduce recidivism. For far too many youth, juvenile incarceration has likely increased their risk of re-offending (National Research Council, 2013, p. 136), of dropping out of high school, and of involvement in the adult criminal justice system (Aizer and Doyle, 2015). Moreover, harsh sentences and lengthy confinement may adversely affect the developmental trajectories of many youth with no discernible benefit to public safety. A developmentally appropriate system will seek to individualize treatment based on the characteristics of the youth concerned: their maturity, needs, circumstances, role in the offense, and past criminal record. Developmental knowledge regarding rehabilitation does not displace the specific corrective aims of the justice system, but rather is relevant to any prevailing penal philosophy.
A great deal of progress has been made toward achieving a developmentally appropriate justice system in the past two decades. This section reviews recent scientific evidence that confirms the need for developmentally appropriate reforms and the adoption of developmentally appropriate policies and practices at the state and local levels.
Affirming the Scientific Consensus
Over the past 15 years, developmental science has greatly transformed the juvenile justice system. New evidence from developmental neuroscience has affirmed and strengthened findings from the psychological sciences. For example, the use of functional magnetic resonance imaging (fMRI) has revealed that the maturation of structural connectivity within the prefrontal cortex is paralleled by increases in functional connectivity and changes in important activation patterns. Specifically, this maturation is paralleled by increases in the extent to which different regions coactivate during particular tasks and by changes in patterns of activation during tasks that measure working memory, planning, and the inhibition of responses—all of which are important for impulse control and for thinking ahead (Casey, 2015; Luna et al., 2010; Stevens et al., 2007).
Such findings of structural and functional differences between adolescent and adult brains, which are plausibly linked to differences in the ability to control impulses and respond to peer pressure, suggest that these aspects of adolescent immaturity are not merely reflective of juveniles’ poor choices or different values. Rather, they suggest that they are at least partly due to factors that are not entirely under their individual control. To illustrate this with a familiar example, while driving a car, adolescents and adults may both estimate the risks of reckless driving, such as receiving a ticket or getting into an accident, in a similar fashion. However, while they are cog-
nitively able to estimate and understand the risk the same way, adolescents tend to weigh the potential rewards (in this case, the thrill of driving fast) more heavily than adults would. In short, the adolescents would be more likely to engage in the reckless behavior despite understanding the risks. It is during this time in early adolescence that the brain develops the affective neural systems that are tied to reward sensitivity (e.g., the ventral striatum and anterior insula), which helps explain the age differences clearly evident in sensation seeking and risk taking.
Of course, identifying the neurobiological underpinnings of differences in capabilities and capacities by age does not mean that these differences are immutable. As discussed in Chapters 2 and 3, adolescence is a period of heightened plasticity, a time when the brain is especially malleable and responsive to experiences. The neuroscientific evidence, rather, bolsters the argument that adolescents—including young adults in their 20s—are neurologically less mature than adults. This adds strength to the understanding that adolescent wrongdoing is unlikely to reflect irreparable depravity.
Taken together, recent scientific evidence about adolescents’ behavior and thinking, as well as the development of their brain structure and function, affirms the need for a developmental approach to juvenile justice as outlined in the 2013 and 2014 National Academies’ reports. It also affirms the need for developmentally appropriate practices for older adolescents involved in the criminal justice system. That is, the normative development of youth’s brains, behaviors, and environmental influences require different responses to their misbehavior than what is required for adults. Moreover, this heightened developmental predilection for change and responsiveness to intervention means we can also reduce delinquency by supporting programs and interventions targeted to at-risk youth rather than merely responding with punitive punishment and incarceration.
Such a response furthers the public safety goals of the justice system while simultaneously promoting (as compared with detention) the goal of helping the youth themselves and, given the high costs of youth incarceration, potentially even reducing government expenditures at the same time. The cascade of neuroscientific evidence gathered within the past 5 years complements and corroborates the behavioral science that has long guided our common understanding that young people are fundamentally different from adults (Steinberg, 2017).
Adoption of Developmentally Appropriate Policies and Practices
As the scientific evidence continues to mount, a growing number of states and localities have adopted a developmental approach to juvenile justice, according to a 2015 assessment prepared by the MacArthur Foundation:
Family and juvenile courts in 18 states are now more likely to hear cases formerly processed in the adult system, to evaluate a youth’s competency to stand trial, and to consider the youth’s development and maturity in sentencing. Fourteen states have increased the use of diversion and community-based programs, resulting in fewer youth being incarcerated. Ten states have raised their standards for youth placement facilities, increased mental and behavioral health services, and taken steps to keep young offenders closer to their own communities. Nine states have increased juveniles’ access to counsel and in other ways made the legal process fairer for adolescents. Eight states have stopped automatically referring adolescents to the juvenile justice system because they are truant, defiant, or act out in school. (MacArthur Foundation, 2015, p. 14)
Some states have broadly reformed their juvenile justice systems. For example, beginning in 2013, Georgia rewrote its juvenile code; in 2015, Nevada enacted legislation to address age of jurisdiction and use of solitary confinement; and in the same year, Kentucky made changes to reduce the use of secure confinement and increase the use of community-based options. Hawaii also enacted legislation to reduce secure confinement, strengthen community supervision, and target resources to programs and practices proven to reduce recidivism (Durnan et al., 2018). Table 9-1 provides additional examples of recent state legislative reforms consistent with a developmental approach.
While it is clear that a developmental approach to the juvenile justice system has been widely embraced and is having a discernible impact on law and practice in many states, progress is uneven. Sustained effort and attention are needed to accelerate advances and to prevent an erosion of gains, which would likely have negative consequences for adolescents involved in the justice system. Indeed, recent calls for a “re-balancing” (Davis, 2018) of efforts away from diversion and interventions for youth toward short-term safety concerns reflect a misunderstanding and misapplication of the scientific consensus on adolescent development and behavior. As noted above and detailed in Reforming Juvenile Justice: A Developmental Approach (National Research Council, 2013, pp. 119–120, 135), a developmental approach to juvenile justice recognizes the following:
- The developing adolescent brain functions in such a way that predisposes adolescents to risk-taking behavior, and psychosocial influences on decision making during adolescence distinguish juvenile choices from those of adults and indicate that, at a quite fundamental level, the determinants of criminal involvement among juveniles generally differ from the determinants of adult criminality, making juveniles less culpable than adults for criminal choices.
TABLE 9-1 Examples of State-level Legislation Consistent with a Developmental Approach to Juvenile Justice
|California||2018||Expansion of services to include young adults||Act No. 2018-1007: Expands on the Transitional Age Youth Pilot Program to allow youth from Alameda, Butte, Napa, Nevada, Santa Clara, and Ventura counties between the ages of 18 to 21 to participate in the Deferred Entry of Judgement Pilot Program. The program allows eligible youth convicted of felonies to receive additional services, including developmentally appropriate educational and vocational programs and mental health services, including cognitive behavioral therapy.|
|Connecticut||2016||Conditions of confinement||Act No. 16-186: Requires the Department of Children and Families and the Department of Corrections to limit the use of seclusion and restraint on adolescents under the age of 20 and to submit a yearly report that explains the frequency and reasons for using seclusion and restraint.|
|Hawaii||2018||Expansion of services to include young adults||Act No. 208: For the creation of Kawailoa Youth and Family Wellness Centers at youth correction facilities in Hawaii. The program is available for youth up to age 24. The wellness centers should include programs for substance abuse treatment, mental health treatment, vocational training, crisis centers, and family counseling services.|
|Indiana||2018||Truancy and school disciplinary actions||Act No. 151-2018: Allows students to participate in evidence-based plans to improve behavior. The plan must attempt to reduce out-of-school suspension and disciplinary actions. Limits referrals to law enforcement or arrests on school property.|
|Montana||2017||Juvenile sex offenders||Act No. 208: Revises juvenile sex offender laws so that juvenile offenders do not have to register as sex offenders if they do not have a history of sexual offenses and if they are not considered a threat to the public.|
|New Hampshire||2018||Conditions of confinement||Act No. 2017-180: Prohibits the use of handcuffs and shackles on minors being escorted or held in a court facility that is occupied by members of the public. Prevents prosecutors, law enforcement officers, or other state or municipal employees from advising juveniles or their parent or guardian to waive the right to counsel.|
|Oregon||2017||Conditions of confinement||Act No. 257: Prohibits use of physical restraints on juveniles during in court proceedings unless the youth has a history of dangerous behavior or there is a serious risk of the youth harming themselves or others. Prohibits use of physical restraints in transportation of youth, youth offenders, young persons, wards, and children by Department of Human Services or the Oregon Health Authority unless there is a serious risk of the youth harming themselves or others. Prevents the use of restraints as a substitute for supervision or as a punishment.|
|Oregon||2017||Conditions of confinement||Act No. 134: Prevents adolescents under the age of 18 from being incarcerated in a Department of Corrections institution.|
|South Dakota||2016||Sentencing||Act No. 121: Prohibits adolescents under the age of 18 from receiving a life sentence without parole.|
|Texas||2017||Truancy and school disciplinary actions||Act No. 691: Establishes a pilot program in certain public high schools that places students in Junior Reserve Officers’ Training Corps programs to avoid placing them in a juvenile justice alternative education program.|
|Vermont||2016||Sentencing||Act No. 22: Prohibits courts from sentencing a person to life imprisonment without the possibility of parole if the person was under age 18 when the offense was committed.|
|Virginia||2018||Truancy and school disciplinary actions||Act No. 585: Prevents students from being expelled for truancy alone. Prevents students in preschool through the third grade from being suspended for more than 3 days or expelled unless their actions resulted in a physical injury to others or there was a credible threat of harm to another.|
|Virginia||2015||Comprehensive services for at-risk youth||Act No. 406: Establishes interagency programmatic and fiscal policies for the Office of Comprehensive Services for At-Risk Youth and Families to support the purposes of the Comprehensive Services Act (Section 2.2-5200 et seq.). The Comprehensive Services Act requires that a collaborative system of services and funding be established to address the needs of at-risk youth and their families.|
|Washington||2017||Truancy and school disciplinary actions||Act No. 291: Procedures implemented to promote school attendance and reduce truancy. Requires that multiple steps be taken to address the underlying issues leading to multiple unexcused absences before involving the justice system.|
SOURCE: National Conference of State Legislatures (2019), Juvenile Justice Bills Tracking Database. See http://www.ncsl.org/research/civil-and-criminal-justice/ncsls-juvenile-justice-billtracking-database.aspx.
- Criminal punishments can have a lasting negative effect on youth by disrupting psychosocial development, limiting employment and educational opportunities, and hampering their ability to develop relationships with noncriminal affiliates, thus making the transition to noncriminal adult life extremely difficult if not impossible.
- Given that only a small percentage of youth will continue to offend into adulthood unless justice system interventions themselves impede or prevent a successful transition to law-abiding adult life, the goal of reducing crime and increasing public safety will be furthered by ensuring that interventions holding young offenders accountable for their misdeeds do not have the unwanted effect of increasing the risk of reoffending and otherwise impeding successful maturation.
- Developmental science indicates that adolescence is a period during which youth progress toward acquiring skills and capacities necessary to successfully assume adult roles through interaction between the individual and the social environment, and juvenile justice interventions that genuinely aim to reduce recidivism will seek to provide opportunity structures that can promote young offenders’ development into productive adults.
This scientific understanding of adolescence, then, suggests that overly harsh punishments that mimic criminal punishments may have the opposite effect of reducing crime and promoting public safety, and are particularly harmful for youth. According to the same National Research Council (2013, p. 185) report:
[A]ccountability practices in juvenile justice should be designed specifically for juvenile justice rather than being carried over from the criminal courts and should be designed to promote healthy social learning, moral development, and legal socialization during adolescence. If designed and implemented in a developmentally informed way, procedures for holding adolescents accountable for their offending can promote positive legal socialization, reinforce a prosocial identity, and facilitate compliance with the law. However, unduly harsh interventions and negative interactions between youth and justice system officials can undermine respect for the law and legal authority and reinforce a deviant identity and social disaffection.
Since the publication of the 2013 report, the committee has found no evidence contrary to this position and no evidence that suggests that reforms to align the juvenile justice system with a developmental approach have resulted in increased crime or public safety concerns. In fact, crime rates among juveniles ages 10 to 17 have declined by 72 percent since 1996, and the number of youth in residential placement has declined from approximately 105,000 in 1997 to 45,500 in 2016 (U.S. Department of Justice, 2018).
These statistics thus confirm the previous committee’s findings that scientific understanding of adolescent development aligns with the goals of the juvenile justice system—holding youth accountable, being fair, and preventing re-offending—which all serve to improve public safety. Moreover, in a study of the adverse consequences of juvenile detention, Aizer and Doyle (2015) find particularly harmful effects on those adolescents who are still enrolled in school, which—when combined with the fact that school enrollment rates are much higher among adolescents than adults—supports the idea that detention has more severe consequences for adolescents than adults. In short, a developmentally appropriate juvenile justice system acknowledges the potential of youth and helps them become successful,
law-abiding members of their communities, promoting public safety more effectively than a punitive approach.
More than 10 years after its expiration, Congress reauthorized the Juvenile Justice and Delinquency Prevention Act (JJDPA) in late 2018. Among many other reforms, Congress embraced a developmentally informed juvenile justice system as an overarching goal of federal policy: the reauthorization bill amended the JJDPA to require federal and state policies and plans to “reflect the science of adolescent development.”
Reducing racial and ethnic disparities within the juvenile justice system, a problem often referred to as “disproportionate minority contact,” has been an explicit federal policy priority for decades. This history was summarized in the 2013 National Academies’ report as follows:
Congress first gave attention to racial disparities in 1988 when it amended the Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974 (P.L. 93-415, 42 U.S.C. 5601 et seq.) to require states that received formula funds from the Office of Juvenile Justice and Delinquency Prevention (OJJDP) to ascertain the proportion of minority youth detained in secure detention facilities, secure correctional facilities, and lockups compared with the general population and, if the number of minority youth was disproportionate, to develop and implement plans to reduce the disproportionate representation (Section 223(a)(23)). In 1992, the JJDPA was amended. Disproportionate minority confinement was made a core requirement, and 25 percent of a state’s formula funds could be withheld if states did not comply. In 2002, Congress again modified the disproportionate minority confinement requirement and mandated states to implement juvenile delinquency prevention efforts and system improvement efforts designed to reduce, without establishing or requiring numerical standards or quotas, the disproportionate number of juvenile members of minority groups who come into contact with the juvenile justice system (P.L. 107-273, Sec. 12209). Thus the disproportionate minority contact (DMC) core requirement was broadened from “confinement” to “contact,” and states were required to implement strategies aimed at reducing disproportionality. (National Research Council, 2013, pp. 211–212)
The 2018 reauthorization bill amends the JJDPA to strengthen each of the act’s core protections, including greater specificity and structure for the states’ obligation to decrease racial and ethnic disparities. This is an important revision because despite a decades-long mandate to reduce racial and ethnic disparities, inequities within the juvenile justice system continue to persist and are growing (see also the discussion in Chapter 4). While the
overall number of youth in detention has declined, the racial disparity has worsened: in 2013, Black youth were 4.3 times more likely to be incarcerated than White youth, up from 3.7 times as likely in 2003 (National Center for Juvenile Justice, 2017).
As noted in Chapter 4, disparities in the treatment of adolescents, as defined by race and ethnicity, seem to increase at every stage of the process, from arrest, to decision to prosecute and removal to adult court, to sentencing, to type of confinement (DeLone and DeLone, 2017; Fader et al., 2014; Sickmund et al., 2014). Moreover, recent data also indicate that LGBTQ youth, and particularly LGBTQ youth of color, are overrepresented in the juvenile justice system (Dank et al., 2015; Hunt and Moodie-Mills, 2012; Irvine and Canfield, 2016; Majd et al., 2009; Wilson et al., 2017). LGBTQ adolescents represent 5 to 7 percent of the overall adolescent population, yet represent 13 to 15 percent of those currently in the juvenile justice system (Hunt and Moodie–Mills, 2012; Majd et al., 2009).
Root Causes of Disparities
While there has been much debate among scholars as to the root causes of these disparities, most emphasize some combination of differential selection and treatment by the justice system (possibly attributable to implicit or explicit bias) and differential offending by White and minority youth (differences in the actual extent of engaging in law-breaking behaviors), likely the result of disparities in the social conditions children grown up in (National Research Council, 2013). Differential selection suggests that a combination of differential enforcement and differential processing by the juvenile justice system leads to more minority youth being arrested, convicted, and subsequently confined than White youth (Piquero, 2008). Differential offending, conversely, is viewed as contributing to disproportionality through differences in rates at which racial or ethnic groups engage in different types of criminal behavior (National Research Council, 2013).
The idea that racial disparities, particularly in violent crime, are largely attributable to persistent structural disadvantages disproportionately concentrated in Black communities was first theorized by Sampson and Wilson (1995) and, in a recent review, was validated. Although they specifically analyzed data related to adults, Sampson and colleagues (2018) argue that a general thesis of racial invariance can be applied in the juvenile context. As they frame it, this thesis is “the assertion that racial disparities in rates of violent crime ultimately stem from the very different social ecological contexts in which Blacks and Whites reside, and that concentrated disadvantage predicts crime similarly across racial groups” (Sampson et al., 2018, p. 14). The authors find that (1) large racial disparities in violent crime and ecological contexts (e.g., concentrated poverty, family disruption) continue
to exist, (2) structural ecological factors are strong predictors of violent crime and account for a substantial proportion of racial disparities, and (3) the predictive power of these factors transcends racial boundaries. That is, the societal contexts in which youth find themselves—resulting from, in part, the failure of youth-serving systems, such as education, child welfare, and health care, to create positive, supportive environments for youth—lead to disparities in rates of engaging in or being victimized by crime.
The increase in racial disparities in recent years is particularly troubling given the system’s goal of promoting fairness and the federal mandate to reduce racial and ethnic disparities. A possible explanation for the increase in disparate treatment over time is the decline in serious offenses, the type that allows less discretion in decisions to prosecute and sentence. As the number of less serious offenses increases as a proportion of the total, there may be more discretion for practitioners at every stage of the process, potentially resulting in more biased decisions (Arnold et al., 2018; National Council on Crime and Delinquency, 2007). Other possible explanations include (1) disparities in access to alternatives to incarceration, (2) disparities in the selection of alternatives to incarceration due to a family’s inability or perceived inability to participate in a placement alternative, which depends on the parental or family involvement, (3) disparities in offending driven by widening social inequalities and structural disadvantages, and (4) disparities in the selection of youth referred to the juvenile justice system from other adolescent-serving systems, such as schools1 (Hager, 2015; Mears and Cochran, 2015). Box 9-2 further discusses the relationship between school discipline practices and disproportionate juvenile justice system-involvement for minority youth.
The existing literature is insufficient to draw conclusions about the relative contribution of differential offending, differential enforcement and process, and structural inequalities to these disparities, it is clear that this lack of progress in reducing disparities within the juvenile justice system leads to negative outcomes for youth and the system itself (Aizer and Doyle, 2015; National Research Council, 2014; Pew Charitable Trusts, 2015). Ensuring that youth perceive that they have been treated fairly contributes to social learning, moral development, and legal socializing2 during adolescence (Office of Juvenile Justice and Delinquency Prevention, 2012). Reducing racial and ethnic disparities in the administration of juvenile justice, thus,
1 Similar trends have appeared in the education field, as progress in narrowing test-score gaps between Black and White students has stalled. It is possible that both trends share similar underlying causes. This potential connection could be an important area for future research.
2 “Legal socialization” is the product of accumulated interactions with legal authorities, and personal experiences with justice system actors, thus shaping a person’s views about the system.
is critical to achieving a fair juvenile justice system and promoting positive adolescent development.
Theories of legitimacy suggest that those who perceive the justice system to be more legitimate are more likely to comply with the law (National Academies of Sciences, Engineering, and Medicine, 2018; Tyler, 1990), although questions remain as to the causal connection between changes in treatment and changes in compliance (Nagin and Telep, 2017). The experiences of others, or vicarious experiences, may also influence attitudes. Indeed, Black youth consistently report more negative attitudes toward the police than White youth (Hurst et al., 2000; Peck, 2015). These experiences likely lead minority youth to perceive the justice system as biased.
Moreover, the formation of attitudes toward the justice system over the course of adolescence and early adulthood varies dramatically by race and ethnicity. Black youth, for example, often have a negative view of the justice system based on personal experiences or events they have witnessed. Latinx and White youth report similar attitudes toward the justice system
during adolescence, but White youth, over time, have been found to view the system more positively than Latinx youth. These results suggest that attitude differences emerge through the course of adolescence. Indeed, White youth are the only group whose attitudes about the system become more positive as they age (Fine and Cauffman, 2015).
Reducing Racial Disparities in the Justice System
Given the disproportionate representation of minority youth in the juvenile justice system, the dovetailing of attitudes about the justice system between White and non-White youth likely represents recognition and awareness among youth of racial bias in the system. In such a climate—where youth recognize the biases undergirding a system purporting to dole out impartial, fair justice—it is all the more important to continue to affirm a commitment to accounting for, acknowledging, and tackling disproportionate minority contact.
Critical to this accounting is the continued collection of data on disparities in the system, which, as noted above, has been strengthened under the JJDPA reauthorization act. As part of its core requirements, the Office of Juvenile Justice and Delinquency Prevention is mandated to provide grants and training to local justice system actors with the aim of reducing racial and ethnic disparities. States receiving funding must identify, assess, evaluate, and monitor disparities. Understanding where disparities exist within the system, thus, is an important first step to resolving the problem of disproportionate minority contact and is imperative for building the legitimacy of the system. However, such an understanding can only be achieved if states are required to furnish specific, rigorous metrics on race and ethnicity.
Of course, it is not simply enough to collect data about the disparities within the juvenile justice system. Remarkably little progress has been made despite more than 20 years of research and policy focus on this issue. The 2013 National Academies’ report cited earlier noted that the lack of progress in this area was partly due to several deficits: a lack of motivation, insufficient cross-system collaboration, inadequate resources, deeply rooted structural biases, and the extreme difficulties of disentangling the many complex, multilevel, and interrelated contributing factors (National Research Council, 2013, p. 213).
In the same report, the committee urged that “reform efforts to reduce racial/ethnic disparities should pay special attention to the arrest and detention stages at the front end of the system” (National Research Council, 2013, p. 239). It is also critical for school systems to invest in developmentally appropriate alternatives to punitive and discretionary school disciplinary practices as they are more likely to result in a referral to the juvenile justice system (National Research Council, 2013, pp. 239–240). This committee supports those recommendations.
Because racial and ethnic disparities within the juvenile justice system may also result from disparities in rates of engaging in or being victimized by different types of criminal behavior, policies that prioritize some groups for extra prevention programming to reduce criminal involvement or delinquency may be appropriate. For instance, if there are differences in group rates of offending due to differences in family, neighborhood, or school social conditions, evidence-based interventions that are targeted, implemented upstream, and preventive in focus may have positive effects on individual and social behaviors. Practitioners and communities have a greater chance of creating positive behavioral and environmental changes if they select interventions based on the characteristics and circumstances of the participating individual, group, or community and follow established implementation and evaluation frameworks, such as those included in Office of Juvenile Justice and Delinquency Prevention’s Model Programs
Guide.3 In short, because the factors that drive human behaviors (including delinquent and criminal behaviors) are rooted in social and structural conditions that different racial groups experience differently, the most successful solutions will address changes to both the systems’ policies and the individuals and communities that they serve.
It is important to note that there is no inherent trade-off between reducing racial and ethnic disparities and promoting public safety. It is possible to improve outcomes for youth without harming public safety. To achieve this goal, it is critical to understand the root causes of disparities in the justice system and implement policies and practices that target these inequalities while continuing to hold youth accountable.
Developmental science can inform policy and practice in the juvenile justice system in a number of key areas. Drawing on this scientific evidence base, in this section we first discuss opportunities for increasing family engagement when youth are involved in the juvenile justice system. Next, we discuss opportunities to create greater procedural fairness in the system, including interactions with the police, legal representation for youth, and juvenile fines and fees. Finally, we discuss several ways in which additional reforms can ameliorate the harmful effects of justice system involvement on the youth’s future prospects, including restricting access to juvenile records, avoiding overuse of sex offender classification, and curtailing use of solitary confinement.
As described elsewhere in this report, parental engagement and support are critical to adolescents’ success in academic settings, autonomy development, relational competence, and a host of other domains. In fact, several recent psychological and neuroscientific studies have demonstrated that parents continue to matter for adolescents’ decision making, in contrast to common assumptions that parents begin to “matter less” as peers “matter more” to adolescents (Guassi et al., 2018; Welborn et al., 2016). It is no surprise, then, that parental engagement for youth who are involved in the justice system has been shown to have positive effects both on young people’s desistance from crime and on their mental health outcomes. A robust body of evidence has shown that a supportive parent-child rela-
tionship is an important protective factor in desistence from crime among youthful offenders, suggesting that parents play a key role in helping adolescents navigate the justice system (Hoeve et al., 2008, 2009). According to the National Research Council (2014b, p. 23), a developmentally informed system would “aggressively seek to work with all families and family-focused organizations based on the understanding that they are necessary and critical partners.”
Because young people generally lack an understanding of their legal rights, responsibilities, and courtroom procedures, they often find it difficult to navigate the complexity of the justice system without assistance (Goodwin-DeFaria and Marinos, 2012; Grisso et al., 2003; Miner-Romanoff, 2014; Redding and Fuller, 2004). As a result of children’s well-recognized dearth of legal knowledge, a foundational expectation of the juvenile justice system is that parents have the necessary legal knowledge to partner with the system and guide their children through the justice process (Rozzell, 2013). However, few resources are available to teach parents to help their youth navigate the juvenile justice process, including information related to their family’s rights and duties during the process (Davies and Davidson, 2001; Feierman et al., 2011).
Youth most at-risk for juvenile justice system involvement, including youth from low socioeconomic status backgrounds and youth of color (Woolard et al., 2008), may have parents who are not well equipped to navigate the juvenile justice system. Latinx parents and low-income parents may be especially deferential to authorities, leading them to capitulate to the knowledge of legal authorities after their adolescent has been arrested (Gaitan, 2004; Harding, 2006; Holloway et al., 1995). Additionally, non-English-speaking parents, because of cultural and linguistic barriers, may not have a clear understanding of probation requirements. Studies have found that parents with less knowledge of the juvenile justice system were less likely to participate in their child’s legal proceedings. Further, their adolescents were more likely to report engaging in re-offending behavior. This suggests that a lack of legal knowledge may limit parental participation in the legal process and perhaps even contribute to a youth’s prolonged or more serious involvement with the justice system, such as having probation extended because the original terms were not met (Cavanagh and Cauffman, 2017). Thus, given that youth are more likely to complete their probationary terms and desist from crime when their parents are included in the legal process, legal education for the parents and caregivers of justice-involved youth is key to encouraging parental engagement (Burke et al., 2014; Cavanagh and Cauffman, 2017; Vidal and Woolard, 2016).
Parental engagement may also have positive effects on incarcerated youths’ mental health. As discussed previously, youth in the justice system are disproportionately likely to have been diagnosed with a mental ill-
ness or experience poor mental health, and incarceration accentuates these problems (Cauffman et al., 2007; Grisso, 2004; Potter and Jenson, 2003; Teplin et al., 2002). One method for promoting successful adaptation to incarceration for youth is to facilitate early and continued parent-adolescent visits. In a study of serious offenders who were adolescent males, Monahan and colleagues (2010) found that parental visitation was associated with better mental health during a juvenile’s initial adjustment to incarceration, and that more visits from parents were associated with increasingly rapid declines in depressive symptoms over time.4 The authors argued that “to the extent that the positive effects of parental visits on depressive symptoms became stronger over time, allowing parental visits as soon as youth become incarcerated may produce earlier declines in depressive symptoms among incarcerated adolescents” (Monahan et al., 2010, p. 7).
To facilitate such parental visits, juvenile facilities should limit the use of restrictions on visitation rights as punishment. Further, policies should be put in place to assist families in overcoming barriers to prison visitation, such as geographic distance and lack of resources. Box 9-3 discusses the “Close to Home” initiative in New York, which increased opportunities for parents, caregivers, and other relatives to stay connected to their children. This model is being replicated across the country in programs such as Philadelphia’s Safely Home Philly initiative.
The justice system can also draw lessons from other systems to build strategies for engaging parents in improving outcomes for their children. For example, the education system has long attempted to improve parent engagement with varying degrees of success. A recent experimental effort focused on student absenteeism shows promise for scalability within the education system and transferability to the justice system, namely: addressing parental cognitive errors. This randomized experiment underscored the importance of tailoring interventions to target parents by demonstrating that correcting the false assumptions parents hold can bring about significant changes in student behavior (Rogers and Feller, 2018).
Similarly, there is evidence that family engagement is useful in reducing recidivism for adults, which has implications for the juvenile justice system (Cavanagh and Cauffman, 2017). The study also suggests that the impacts could be even larger for adolescents when parents are provided with critical information that is regular, timely, and in context. More evidence on the effectiveness of parent legal education, and on what are the most effective types, is needed.
4 The study also found that the quality of the parent-adolescent relationship did not moderate the effect of parental visitation on youth mental health, suggesting that the mere presence of a parent has positive effects on the incarcerated youth’s adjustment to confinement.
Procedural fairness5 refers to whether the justice system is impartial and equitable, whether litigants feel respected and have a fair opportunity to be heard, and whether the fact-finding procedures are neutral and trustworthy (National Academies of Sciences, Engineering, and Medicine, 2018). The fairness of this process for juveniles is affected by their developmental immaturity, which influences their ability to exercise their rights and participate competently. As a result, the Supreme Court has articulated constitutional protections specific to juveniles because they are less likely than adults to understand their rights (for example to an attorney and to remain silent) and more likely to succumb to pressure or to an inducement to waive their rights. Juveniles are also more likely than adults to confess to crimes (Grisso, 1980, 1981; National Research Council, 2013). Areas of particular interest are interactions with police, especially police interactions, and legal representation.
Interactions with Police
Police/youth interaction has substantially increased as a result of the police presence in our nation’s schools, making the impact of those interactions on youth perceptions or behavior of particular interest (National Center for Education Statistics, 2018; Travis and Coon, 2005). The National Academies’ 2013 report concluded that “negative observations and contacts that youth have with police may produce cynicism and undermine legal socialization” (National Research Council, 2013, p. 194). However, in examining police/adult interactions, the National Academies found that “the research base is currently insufficient to draw conclusions about whether procedurally just policing causally influences either perceived legitimacy or cooperation” (National Academies of Science, Engineering, and Medicine, 2018, p. 248), while also acknowledging that negative encounters could be a far more consequential influence on youth perceptions than positive encounters. Minority youth, who tend to experience a significant share of police attention, are more likely to hold critical opinions of the police and adopt protective responses, such as avoidance and resistance, compared to other youth (National Research Council, 2013).
The implications for procedural fairness are considerable in light of the extensive research that adolescents are vulnerable to intimidating encounters with law enforcement, particularly during questioning under circumstances that can be coercive, such as when they are isolated from adult support (Feld,
5 “Procedural fairness” and “procedural justice” are terms used interchangeably in the literature and in this chapter as well.
2006). For example, one study found that only 8 percent of defendants ages 14 and under remained silent during an interrogation (Viljoen et al., 2005). It appears the younger the adolescent, the more susceptible they are, as demonstrated by a laboratory study that found children under 15 were more likely to confess than older teens (Grisso et al., 2003). The Supreme Court has long recognized this disadvantage, holding in 1967 that “the empirically based premise that juveniles, because of their developmental immaturity, are more vulnerable to coercion and less likely to understand or to exercise their interrogation rights has led courts to examine the confessions of juveniles with ‘special caution’.”6 The Court recently extended that protection to include circumstances when police question youth in a closed schoolroom.7
There has been considerable litigation in recent years on the validity of juvenile confessions. This litigation has focused on doubts concerning their reliability (the potential for false confessions) and voluntariness (whether the juvenile was unduly pressured), as well as on whether juveniles understand their rights (to remain silent and to be represented by counsel) and make a “knowing” decision when they waive them. At a minimum, defendants need to understand the basic protections provided by the Miranda decision, but research shows that adolescents under age 15 do not have the ability to comprehend those rights (Grisso, 1980). Based on its review of the literature regarding the capacity of adolescents to understand their rights and the consequences of waiving them, the committee believes that adolescents under age 15 should not be permitted to waive the right to an attorney or the right to remain silent without prior consultation with an attorney. A per se rule is indicated in this context, as declared by the American Law Institute in its Restatement of the Law: Children and the Law.8
“The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is the essence of justice.”9 With these words the Supreme Court articulated a constitutional protection that it has repeatedly upheld—that due process demands representation by an attorney whenever a juvenile is in legal proceedings where the juvenile’s liberty is at stake.10 As previously discussed, juveniles younger than 15 lack the requisite cognitive capacity to knowingly waive their right to counsel, and they certainly lack the requisite knowledge to represent their own
6 In re Gault, 387 U.S. at 45.
7 J. D. B. v. North Carolina, 564 U.S. 261 (2011).
8 American Law Institute, Restatement of the Law: Children and the Law, Section 14.22 (approved at Annual Meeting, May, 2018).
9 Kent v. United States, 383 U.S. 541, 561 (1966).
10 In re Gault, (387 U.S. 1 (1967)).
interests. Yet many states allow youth to make decisions about their pleas and sentences without the guidance or support of a lawyer (Feld, 1989). For example, one recent study of court proceedings in various states found that up to 90 percent of juveniles waive their right to counsel and enter into plea agreements, without consulting an attorney and without warnings regarding the consequences (National Juvenile Defender Center, 2016).
One element of procedural fairness is voice, such as when a person is able to fully participate in the legal proceedings. This is the role an attorney plays in juvenile proceedings; giving a platform to the adolescent client’s voice in the courtroom. The role of the juvenile defender is to insist on fair and lawful juvenile court proceedings, guarantee that the child’s voice is heard at every stage of the process, and safeguard the child’s due process and equal protection rights (National Juvenile Defender Center, 2016). Procedural fairness is virtually unachievable without skilled lawyers advocating for their young clients. While statutes and judicial precedents in most states permit juveniles to waive counsel in delinquency proceedings, this practice has been widely criticized by legal commentators, and a systematic review of rulings by state appellate courts over the past decade indicates that trial court rulings permitting waiver tend to be reversed, especially in cases involving felony offenses or significant periods of confinement.11 In the committee’s view, waiver of counsel should rarely, if ever, be permitted, in accord with the position taken by the Council of the American Law Institute in 2018.12
Procedural fairness can also be enhanced by creating legal teams that include social workers, housing specialists, and other critical services. In addition to improving procedural fairness, a recent 10-year comparison study found that the use of interdisciplinary legal teams in adult court cases in the Bronx, New York City, significantly reduced incarceration and saved taxpayer dollars, without harming public safety (Anderson et al., forthcoming).
Juvenile Fines and Fees
Courts can sentence offenders to fines, fees, restitution, and surcharges. These monetary sanctions act as a “fee-for-service,” aimed at recouping the costs of the justice system (Harris, 2016). If outstanding legal fees are not paid regularly, offenders may be called to court hearings and warrants may be issued for their arrest for violation of court orders, if they fail to
11 This systematic review of state appellate rulings was conducted for the American Law Institute’s Restatement of Law: Children and the Law by the Co-Reporter’s for the Project in the summer of 2018. See Reporter’s Note for Section 15.21. American Law Institute, Restatement of the Law: Children and the Law, Section 15.21 (approved by Council, September, 2018).
12 American Law Institute, Restatement of the Law: Children and the Law, Section 15.21 (approved by Council, September, 2018).
pay or appear before the court. Moreover, if fines and fees are not paid in full, offenders cannot regain certain rights lost upon conviction, such as the right to vote and have their records sealed. In this way, indigent defendants often remain under the supervision of the court long after their original sentences (Harris, 2016).
Although most research to date on the effects of financial penalties has focused on the adult criminal justice system, a recent study by Piquero and Jennings (2017) looked at the effects fines and fees have on recidivism rates in the juvenile justice system. According to their analysis of data collected from 1,167 youth from Allegheny County, Pennsylvania, non-White youth with a history in the juvenile justice system were more likely to have higher total amounts of fines and fees when their case closed and were at higher risk of recidivism than White youth. Similar disparities have been found in relation to fines and fees in the criminal justice system.13
While fines and fees may be used to improve youth outcomes by reducing recidivism rates and increasing youth understanding of empathy and accountability, excessive fees that do not consider one’s ability to pay can have long-lasting effects on youth, their families, and society. For instance, youth, and sometimes parents, who receive penalties for failure to pay may suffer negative effects on employability, which in turn can make it difficult to avoid re-entering the justice system (Feierman et al., 2016; Harris, 2016).
Although more research is needed on the outcomes associated with the current systems of fines and fees for juveniles at the national, state, and local levels, Piquero and Jennings (2017) encourage policy makers to consider currently available evidence and improve current policies to return the juvenile justice system to its mission of providing justice for victims and encouraging the rehabilitation of youth offenders so that they may become positive and productive members of their communities (Piquero and Jennings, 2017).
Harm after exiting the justice system may result from system interventions that impede or prevent a successful transition to a law-abiding adult life by making it difficult for youth to productively re-enter their communities. We have previously discussed the cardinal aim of reducing secure placements in correctional settings unless necessary for public protection
13 According to a recent report by the U.S. Commission on Civil Rights (2017), families of color with low-income levels are more likely to receive financial penalties in the criminal court system. Further, even fines and fees imposed for minor crimes can increase family debt, creating substantial difficulties for families with limited incomes (U.S. Commission on Civil Rights, 2017).
and then only for periods of days or months, not years. Much progress has been made in recent years. In this section, we discuss three additional practices that should be used only when essential to protect public safety, if at all: allowing access to records of justice system involvement, using sex offender registries, and allowing solitary confinement.
Access to Juvenile Offense Records
As previously discussed, much of adolescent delinquent behavior is influenced by developmental factors, and therefore, when given access to supportive resources, most youth will mature out of criminal activity. In fact, research clearly indicates that only a small number of adolescent offenders persist in their offending beyond their mid to late 20s (Mulvey et al., 2014). This pattern among adolescents of criminal involvement and disengagement suggests that society’s goal of reducing crime will be furthered by interventions that hold young people accountable for their misdeeds while not increasing the risk of re-offending or otherwise hindering positive development and maturation (National Research Council, 2013).
While it is well recognized that the declared ethos of juvenile court system has traditionally been “to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past” (Juvenile Law Center, 2016, p. 3), in practice easy access to juvenile records is now commonplace in most jurisdictions (Juvenile Law Center, 2014a, 2014b). During the first generation of the juvenile court period (1899–1967), the general practice was to seal records (close them to public view) or expunge them (physically destroy them). However, these practices were abandoned in many states during the last two decades of the 20th century as a more punitive model of juvenile justice was widely embraced. As a result, state statutes are now quite complicated. As of 2014, record information was completely confidential in only nine states—that is, they allowed no public access to juvenile records, regardless of the seriousness of the offense, the number of offenses, or the age of the child (Juvenile Law Center, 2013). At the other end of the spectrum, seven states categorically make all juvenile records public, although there are some exceptions in each of these states. In the remaining 33 states and the District of Columbia, access to the records typically turns on the age of the juvenile, the nature of the offense, the number of offenses, or the amount of time since the adjudication; a blunt distinction is often drawn between felonies and less serious offenses.
In recent years, the pendulum has begun to swing back in the direction of confidentiality. According to the most recent data, 42 states offer juveniles a chance to expunge or seal their records after a certain period (Juvenile Law Center, 2018b; National Conference of State Legislatures, 2018). However, of these states, only 12 provide automatic sealing or
expungement of these records. If the principle is accepted that the only overriding justification for allowing access to records of juvenile offending is to protect public safety, there is no justification for allowing access to the records in connection with employment, occupational licensing, and other purposes unrelated to law enforcement.
Among the most contested questions in the continuing debate about access to juvenile records is whether delinquency adjudications should count as “criminal convictions” for purposes of mandatory sentencing enhancements for re-offending. Many legal commentators have argued that these records should not be used for this purpose, because findings of delinquency in most states do not have the degree of reliability that criminal convictions have due to the informality of juvenile court proceedings and the weakness of procedural safeguards, including the lack of a right to a jury trial, and because enhancing later sentences based on a juvenile offense is disproportionate to the juvenile’s culpability (Feld, 2003). It is also doubtful that automatically enhancing a later sentence without regard to the circumstances of the offense can be defended on public safety grounds, but more individualized use by sentencing judges might be defensible as an element of a general policy that allows prior offending to be taken into account in criminal sentencing.
Use of Juvenile Records in Risk Assessment
A related issue is whether and in what way juvenile offending should be considered in statistical risk assessments. Predictive decisions are made routinely in the justice system, and particularly in cases involving adolescents, including whether to place a youth in detention after being charged with an offense, whether to place an adjudicated delinquent in a secure facility, whether to transfer a juvenile charged with a serious offense to the criminal court for trial on the ground that retaining the youth in the juvenile system would not adequately protect public safety, and, if the youth is prosecuted in the criminal court, whether incarceration is required for public protection. The parallel assessment in the context of juvenile dispositions is whether the services provided to the juvenile will reduce the risk of re-offending.
These are exactly the sort of prediction tasks that human beings have enormous difficulty with, since they require thinking probabilistically, drawing inferences, and making attributions (see, e.g., Kahneman, 2011). As a consequence, a large body of research in psychology shows that on average, statistical models are typically able to formulate such predictions much more accurately than human beings (Dawes 1971, 1979; Dawes et al., 1989; Grove et al., 2000; Meehl, 1954).
Research on risk assessment tools has examined a variety of factors to determine predictive accuracy and reliability, such as including a history of
arrest as a juvenile (Bechtel et al., 2011). This has prompted considerable debate and ongoing research as to the utility of these assessment tools, with some critical of the potential for inherent biases (Harcourt, 2015) and others praising objectivity as potentially increasing fairness (Flores et al., 2016).
The likely consequence of human misprediction in the justice system is that judges detain many low-risk people while releasing many high-risk ones, and more generally they detain more people overall than necessary to achieve a given level of crime reduction (Kleinberg et al., 2018). The well-documented biases that affect human cognition may also lead judges and other human decision makers to consciously or subconsciously predict in ways that adversely affect disadvantaged groups. These same challenges to human cognition may affect other criminal justice decisions, as well as efforts to prioritize and target social services, educational services, and other remediation programs that too often do not have adequate capacity to serve everyone who might potentially benefit.
Risk prediction models have the potential, if properly regulated, to improve the quality of predictions and hence justice system decisions (Kleinberg et al., forthcoming; see also Goel et al., 2019). For example in a study of the adult justice system in New York City, Kleinberg and colleagues (2018) show that basing pretrial release decisions on statistical predictions rather than judges’ predictions would allow for the current jail population to be reduced by more than 40 percent with no increase in either crime or skipped court appearances, by limiting detention to those who are truly high-risk. Moreover, these gains can be achieved while simultaneously reducing racial disparities in pretrial detention relative to the status quo. However, these outcomes are not guaranteed. Risk tools, like any technology, can be misused, which is a particular concern in the context of the criminal justice and juvenile justice systems in the United States, where over-representation of racial and ethnic minority groups remains a longstanding problem in urgent need of repair. Putting the proper regulatory and legal systems in place to deal with these new tools, which would require approaches quite different from the legal systems required to regulate human decision making (Kleinberg et al., forthcoming), is critical to help ensure that this new technology is used in helpful ways.
This discussion highlights the potential benefits from making juvenile records available for risk prediction by judges and other criminal justice officials; but of course there are also potential costs. However, if these records are made available to the general public, rather than being restricted to use by judges and other officials, they are likely (all else equal) to hamper adolescents’ ability to attend college, get a job, complete occupational license, or secure housing, among other critical life events. Making juvenile records widely available would compound the consequences of justice system involvement. However, making records available for the purposes of better risk pre-
diction and hence justice system decisions and targeting of social services has the potential to accomplish the opposite, reducing the prevalence of justice system involvement. More research is urgently needed to better understand the tradeoffs involved here and how society can best manage them. It does seem well within our capability to allow proper uses for risk assessment while restricting access to these records for purposes of education, employment, and other purposes unrelated to the prevention of crime.
Sex Offender Registries
Perhaps the most severe version of juvenile offense information preventing future life opportunities is sex offender registration for non-violent offenses committed as a juvenile.
In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA), which established minimum guidelines for registrations with which states must comply.14 SORNA was the first federal legislation that explicitly covered juvenile sex offenders, including those who were either at least 14-years-old and adjudicated delinquent for sex offenses involving aggravating circumstances or convicted in criminal court. In 2011, the Department of Justice clarified that states were not required to publicly disclose the names of juvenile sex offenders. However, many states nonetheless require younger juveniles to register (even for less serious offenses) and provide public notification (Najdowski et al., 2016). Thirty-eight states have some form of juvenile sex offender registration and notification laws. Moreover, six states require lifetime registration of juvenile offenders.15 Many jurisdictions have implemented policies for juveniles adjudicated delinquent that mirrored the practices used for adult offenders (Sandler et al., 2017). In those states that require registration, adolescents are sometimes directed to register as sex offenders for behaviors that are not violent, including sexting and engaging in consensual sexual relationships with similar-aged peers (Higgins, 2010). In these cases, youth exploring sexual identities—a normative process of adolescence—are unfairly required to register as sex offenders. While some states have adopted laws and policies to protect this behavior—typically through “Romeo-and-Juliet” provisions that allow for relationships between adolescents within specified age ranges—those provisions often do not protect juveniles from registration in cases involving same-sex relationships.
14 Under SORNA, a “sex offense” includes offenses having “an element involving a sexual act or contact with another”; “video voyeurism”; having possession of, producing, or distributing child pornography; and “any conduct that by its nature is a sex offense against a minor.”
15 The six states that require lifetime registration of juvenile sex offenders are California, Florida, Montana, South Carolina, Virginia, and Washington.
An increasing number of legal scholars have questioned the constitutionality of requiring juveniles to register as sex offenders for these nonviolent behaviors, based on both the Supreme Court’s decisions in Roper v. Simmons,16Graham v. Florida,17 and Miller v. Alabama,18 as well as research findings on the profoundly negative impact on the life outcomes of juveniles. Studies show that juveniles registered as sex offenders suffer shame, ostracism, and depression in the short term, and long-term effects have been documented in mental health, education, employment, homelessness, and relationship disruptions (Chaffin, 2008; Levenson and Cotter, 2005; Mercado et al., 2008; Tewksbury and Lees, 2006). In 2013, Pittman and Parker published the results of 300 interviews that contained consistent accounts of the irreparable harm experienced by youth and their families due to the juvenile sex offender registries. They reported pervasive harassment, stigmatization, isolation, and suicidality (Human Rights Watch, 2013).
Research has demonstrated that rates of re-offending are as low as 5 percent among juveniles adjudicated as sex offenders (Bureau of Justice Statistics, 2003; Hanson et al., 2014; Zgoba et al., 2016; Zimring, 2004), substantially lower than the re-offending rates of those adjudicated or convicted of violent, property, and drug crimes (Durose et al., 2014; Sample and Bray, 2006). In addition to the extremely low rate of recidivism, there appears to be little relationship between early offending and offending as an adult. One study noted that 85 percent of juvenile sex offenders did not re-offend as adults and that 92 percent of adult sex offenders had not offended as juveniles (Jennings et al., 2009). The recidivism and re-offense rates also show no connection with whether or not youth were registered as sex offenders. To date, no demonstrated reductions in sexual offenses has been attributable to registering as a sex offender (Agan, 2011) or to the existence of sex offender registries themselves (Letourneau et al., 2010).
The foregoing findings led Jennings and colleagues (2015) to conclude that “in light of these empirical consistencies, it appears that community notification and registration policies seem to overly penalize and misidentify sex offender recidivists, especially among juvenile sex offenders, and may be doing more harm than good” (Jennings et al., 2015). The data suggest that there would be little risk to public safety if sex offender registration were to be eliminated for non-violent juveniles.
16 Roper v. Simmons, 543 U.S. 551, 618 (2005) (Scalia J., dissenting).
17 Graham v. Florida, 560 U.S. 48 (2010).
18 Miller v. Alabama, 132 S. Ct. 2455 (2012).
The practice of placing incarcerated individuals alone in a cell for an extended period of time is most commonly termed solitary confinement but is also known as “room confinement,” “seclusion,” “isolation,” or “segregation.” While current data are insufficient to estimate the prevalence of the use of solitary confinement for juveniles, a 2010 national study reported that more than one-third of the roughly 100,000 youth placed in juvenile residential facilities spent time in solitary confinement (Sedlak and McPherson, 2010). The Office of Juvenile Justice and Delinquency Prevention has reported that, in 2014, nearly one-half of juvenile detention facilities and training schools used practices that confined youth alone for more than 4 hours at a time (Hockenberry et al., 2016). A 2017 report details the persistent use of solitary confinement for up to 23 hours per day in some facilities (Feierman et al., 2017). While high-quality research about the effects of solitary confinement on outcomes like safety within a detention facility is quite limited, some correctional administrators apparently believe that isolation increases the safety and security of the facilities (Feierman et al., 2017).
Social science research to date has provided very little assessment of what, if any, benefits solitary confinement provides for facility safety, but the research is quite clear that the practice poses a number of demonstrated harms to juveniles. As discussed in Chapter 3, positive interactions with peers facilitate psychosocial maturity and growth in adolescents; therefore, confining youth alone for extended periods of time inhibits their ability to interact with peers and deprives them of a developmentally appropriate environment. Moreover, given the heightened plasticity of the adolescent brain, negative environments and adverse experiences, such as being held in solitary confinement, will result in significant trauma (Haney, 2003) and adversely affect adolescent brain development (see, e.g., Cauffman et al., 2018; Tottenham and Galván, 2016). Indeed, extensive research in rodents shows that solitary and barren housing has detrimental effects on dendritic morphology, which further suggests that solitary confinement has impacts on brain development at the neuronal level (see, e.g., Beery and Kaufer, 2014; Hyer and Glasper, 2017; Medendorp et al., 2018).
Although there is little systematic evidence specifically demonstrating the harmful effects of solitary confinement on youth, studies of incarcerated adults consistently demonstrate that those who experience solitary confinement are at greater risk for mental illness and suicide (Grassian, 2006). According to the National Research Council’s 2014 report, The Growth of Incarceration in the United States: Exploring Causes and Consequences, “an extensive empirical literature indicates that long-term isolation or solitary confinement in prison settings can inflict emotional damage. The
overwhelming majority of studies document the painful and potentially damaging nature of long-term prison isolation (Lobel and Akil, 2018)” (National Research Council, 2014a, p. 187). Indeed, considering that many incarcerated youth prior to incarceration experienced trauma or suffered from an undiagnosed mental illness (Vermeiren et al., 2006), youth are likely to be particularly vulnerable to the harmful effects of solitary confinement, and it is likely that solitary confinement exacerbates their pre-existing conditions (Rademacher, 2016). Though studies have not specifically examined the effects of solitary confinement on juveniles’ well-being and development, the committee concludes that this practice is at least as harmful to adolescents as it is for adults, and probably more so.
Recognizing these ill effects, the Obama Administration banned the use of solitary confinement for juveniles in federal prisons (The White House, 2016), and the criminal justice reform legislation known as the First Step Act, passed and enacted in late 2018, also includes a ban on solitary confinement for juveniles in federal prisons. A broad array of professional associations have condemned youth solitary confinement, including the American Academy of Child and Adolescent Psychiatry, the American Correctional Association, the American Medical Association, the American Psychological Association, the American Public Health Association, the National Commission on Correctional Health Care, the National Task Force on Children Exposed to Violence, the Council of Juvenile Correctional Administrators, and the National Council of Juvenile and Family Court Judges (Feierman et al., 2017). Thirty states and the District of Columbia have eliminated the use of the practice for punitive reasons, although 25 states still allow the solitary confinement of juveniles for other purposes, including safety concerns (Lowenstein Center for the Public Interest, 2016). Many of these states permit indefinite extensions of limits on the amount of time a juvenile may be held in solitary confinement (Feierman et al., 2017).
Of the youth experiencing solitary confinement while detained, it is likely that youth of color, youth identifying as LGBTQ, and youth with disabilities are disproportionately represented. While no national database tracks the placement of juveniles in solitary confinement by race, data regarding use of the practice in adult facilities suggest that individuals of color are subject to disparate treatment within facilities, including disparate exposure to solitary confinement (Feierman et al., 2017). According to a 2015 survey of 48 jurisdictions conducted by Yale Law School, approximately 7 percent of individuals housed in solitary confinement in adult facilities identified as transgender, even though they accounted for less than 1 percent of the incarcerated population (Association of State Correctional Administrators and Yale Law School, 2016). Youth with disabilities may also be disproportionately placed in detention and other correctional facilities. Qualitative evidence suggests that individuals with physical disabilities
and transgender youth may be placed in solitary confinement because of a lack of adequate accommodations in general housing or because correctional facility staff deem solitary confinement necessary to protect these youth from the general population (American Civil Liberties Union, 2017; Feierman et al., 2017).
While little research has been conducted on effective alternatives to solitary confinement, a number of jurisdictions are adopting changes in policy and practice designed to protect both the safety of individuals and the facilities as a whole (National Institute of Justice, 2016). For example, the Vera Institute of Justice has been working on two separate projects with adult corrections officials in 13 states: Illinois, Louisiana, Maryland, Minnesota, Nebraska, Nevada, New Mexico, North Carolina, Oregon, Pennsylvania, Utah, Virginia, and Washington. The goals of the institute’s Segregation Reduction Project and Safe Alternatives to Segregation Initiative are to help states reduce the use of solitary confinement and develop effective alternatives in adult facilities. Strategies largely fall into three categories: using specialty units; designing policies and coordinating staff and training (training examples include de-escalation and behavioral intervention techniques); and programming for offenders (Zyvoloski, 2018). One example of specialized units is the New York City Clinical Alternative to Punitive Segregation (CAPS) unit. This treatment unit, which was established for inmates with serious mental illnesses, provides alternatives to solitary confinement, including group therapy, medication, and other therapeutic interventions to reduce injury caused by self-harm and altercations with inmates and prison staff (Glowa-Kollisch et al., 2016). Researchers who studied the intervention found that participation in the program is effective at reducing self-harm and injury and may be cost-effective when health, hospitalization, and fees associated with legal actions are considered.
Although research on effective alternatives continues to be developed, the lifelong harm to youth has led many policy makers, courts, and correctional administrators to agree that solitary confinement for juveniles should be immediately reduced and ultimately eliminated (see Box 9-4). In 2016, the National Council of Juvenile and Family Court Judges passed a resolution to eliminate the solitary confinement of juveniles, listing a series of alternatives such as having clear facility policies that limit room confinement; engaging in staff training in verbal and nonverbal de-escalation strategies; developing behavior management programs; increasing the staff-to-youth ratios; providing mental health professionals to assess youth in crises; and establishing less restrictive alternative housing settings (National Council of Juvenile and Family Court Judges, 2016). It is worthy of note that the Council of Juvenile Correctional Administrators (2015, p. 4) issued a toolkit to reduce the use of isolation in juvenile facilities, stating, “There is no research showing the benefits of using isolation to manage youths’
behavior.” Urgent research is needed to identify effective alternatives to solitary confinement, so that detention facilities will be able to scale back or even eliminate the use of this practice without having adverse effects on the facilities’ safety and functioning.
As noted in Chapter 1, the committee regards the period of adolescence as extending into the twenties from a developmental standpoint, but we have chosen to focus attention concerning the justice system on early, middle, and late adolescents (ages 10 to 17). This is the age group termed “juveniles,” the young people whom the juvenile justice system has traditionally served. Historically, one of the most contested (and frequently litigated) issues in the entire field of juvenile justice was the practice of trying many, if not most, older “juveniles” (those between ages 15 and 17) in criminal courts. This longstanding dispute revolves around two age-related issues: (1) the maximum jurisdictional age of the juvenile court (typically 18, but sometimes 16 or 17), which classifies all 16–17-year-olds as “adults” and subjects them to severe criminal punishments; and (2) the transfer age—the age at which a juvenile otherwise within the jurisdiction of the juvenile court may be transferred to the criminal court for trial as an adult (typically age 14 but widely varying according to the offense charged as well as prior offending).
As a result of developmentally driven reforms in recent years, it is now generally accepted that the maximum age of juvenile court jurisdiction should not be lower than 18 (National Conference of State Legislatures, 2018). The recently emerging discussion is whether the jurisdictional age should be raised even higher than 18, thereby conferring juvenile court jurisdiction in some classes of cases involving young adults ages 18 to 21, based on the developmental argument that the adolescent brain continues to mature into the mid-twenties. This issue will be briefly addressed later in the chapter.
Transfer Age and Effects of Transfer to Criminal Courts
For the purposes of this report, the central age-related issue concerns the “transfer age”—specifically, the circumstances under which adolescents younger than 18 should be subject to criminal prosecution and punishment instead of being retained in the juvenile court. That issue is the main focus of the remainder of this chapter.
Since the juvenile court was first created more than a century ago, juvenile judges have had authority to “transfer” older juveniles (those ages 14 to 17) to the criminal court for trial as adults. Typically, these decisions have been individualized judicial determinations based on the juvenile’s age and maturity, seriousness of the offense charged, danger to public safety, and “amenability” to the treatment and services offered in the juvenile system. In the 1990s, in direct response to a spike in youth violence, many states revised the transfer procedures to require criminal prosecution in
specified categories of cases involving older adolescents charged with more serious offenses, or to tighten the criteria or shift the burden of proof to the juvenile. All states made some type of change designed to facilitate criminal prosecution of adolescents under age 18 (Office of Juvenile Justice and Delinquency Prevention, 1997).
To summarize the current structure of transfer statutes, criminal court jurisdiction may be established in three basic ways: by statutory exclusions from juvenile court jurisdiction or “automatic transfer” (offenses determined by law as requiring criminal court jurisdiction); by traditional judicial decisions after a hearing waiver (allowing the judge to transfer a case from juvenile to criminal court or allowing the criminal courts to transfer a case to juvenile court); or by prosecutorial decisions to file criminal charges (also known as “direct file”) (National Research Council, 2013, p. 52; National Conference of State Legislatures, 2019). The minimum age for transfer is 14 in most states, but it varies according to the seriousness of offense. In recent years, there has been a modest trend to restore juvenile court jurisdiction and return discretion to the judges.
The consequences of transferring a juvenile to criminal court can be severe. Available sentences are much lengthier than typical juvenile court dispositions and can expose the juvenile to mandatory periods of incarceration. Adolescents tried as adults are also at risk of being incarcerated in adult facilities, where they are at greater risk of sexual and physical victimization; although adolescents under age 18 constitute a small minority of inmates in adult facilities, they constitute 21 percent of all victims of substantiated incidents of sexual violence (Beck and Harrison, 2008). The extraordinarily high stakes in transfer proceedings are magnified by the fact that Black youth are more likely to be sentenced to adult prison with longer terms than White youth (Lehmann et al., 2017).
The practice of placing youth in adult facilities continues due to a belief that housing juveniles tried as adults in juvenile facilities poses a risk to other youth in those juvenile facilities (Bechtold and Cauffman, 2014; Burke, 2005). However, empirical evidence shows that youth incarcerated in adult facilities do not commit more institutional offenses than youth incarcerated in juvenile facilities and might not pose a greater threat than youth tried in juvenile court (Bechtold and Cauffman, 2014).
Conversely, as noted by the National Research Council (2013, p. 134), “prisons have been characterized as developmentally toxic settings for adolescents” adversely affecting adolescents’ development of psychosocial maturity, a critical developmental skill for desistance from crime (also see Dmitrieva et al., 2012). Youth confined in adult settings have less access to rehabilitation and education programs than do youth in juvenile facilities (Arya, 2007). This is illustrated by the cost differential between juvenile and adult facilities. For example, in Chicago, the per diem cost of housing
a juvenile at the Juvenile Temporary Detention Center is more than three times the per diem cost of doing so in the Cook County Jail due to the services and programs provided (Circuit Court of Cook County Illinois, 2018; Joint Criminal Justice Reform Committee, 2014). Even youth housed in residential treatment facilities for adults, environments that are focused on rehabilitation, experience decreases in psychosocial maturity over time (Hahn et al., 2007).
While it is clear that placing adolescents in adult prisons has harmful effects on their development, well-being, and health, it is possible that these concerns are mitigated or offset by the incapacitative effect of confinement and by reducing the risk of further offending upon release. As previous National Research Council reports (National Research Council, 2013, 2014) concluded, youth transferred to the adult criminal justice system fare worse than those who remain in the juvenile justice system (Austin et al., 2000; Task Force on Community Preventive Services, 2007). It also concluded that they are at greater risk of reoffending upon release (Bishop and Frazier, 2000; Mulvey and Schubert, 2011; Redding, 2008).
A number of researchers have found that adolescents who are transferred to the adult system are more likely to re-offend, likely to do so at a greater rate, and likely be rearrested for more serious offenses, on average, than those retained in the juvenile justice system (Bishop and Frazier, 2000; Bishop et al., 1996; Kupchik et al., 2003; Mulvey and Schubert, 2012; Winner et al., 1997). Zane and colleagues (2016) conducted a meta-analysis of the specific deterrent effects of juvenile transfer and found that judicial waiver, in particular, may increase recidivism among transferred youths relative to nontransferred youths (Zane et al., 2016). However, the results might not be conclusive, because their research design does not account for omitted variable or selection bias. That is, while it is plausible that the adult system could have adverse effects on youth outcomes, another plausible explanation for finding increased recidivism rates in the transferred population could be that criminal justice system actors have prioritized the highest-risk juveniles for transfer into the adult system, thereby driving the divergent pattern of recidivism rates.
Other recent studies have used regression discontinuity designs to overcome this concern about selection bias, and these provide more robust evidence. Hansen and Waddell (2014) in an analysis of adult prosecutions of juveniles in Oregon, found some evidence that harsher punishments do deter crime. Loeffler and Grunwald (2015) similarly found that processing juveniles in the adult system may not uniformly increase offending and may reduce offending in some circumstances. However, these studies do not provide definitive conclusions as to the impact of transfers on recidivism. Further, since they rely on a minimum age cutoff for eligibility for transfer to adult courts, they do not tell us anything about the effects of criminal
In sum, the scientific evidence on the effects of transfer on juveniles’ outcomes appears to be mixed. There is strong evidence of the negative effects of transfer on adolescents’ development and well-being; however, evidence as to the effects of transfer on recidivism is still emerging. This still-developing body of evidence on transfer does little to inform debates as to the proper maximum age of juvenile court adjudication or the mechanisms by which juveniles should or should not be prosecuted in criminal courts. Given that punishing adolescents for criminal behavior in the same way that adults are punished has a long-lasting or enduring negative effect, this committee reaffirms the National Research Council’s 2013 report findings, which clearly stated that transfer decisions should be guided by the principles of proportionality and individualization with consideration given to the maturity, needs, and circumstances of the individual offender (National Research Council, 2013).
A related controversial issue is whether juvenile courts should have the authority to impose adult sentences for youth who have been charged as adults while being tried in juvenile court. This practice, often referred to as “blended sentencing,” can occur in juvenile or criminal courts after the waiver or transfer of youth and is most often used for serious juvenile offenders. Blended sentencing generally takes three forms: (1) the court sentences the youth to a juvenile disposition or an adult sentence; (2) the court sentences youth to a juvenile disposition along with a suspended criminal sentence, conditional upon nonoffending; and (3) the court sentences youth to a juvenile sentence disposition with extended juvenile jurisdiction, usually up to age 21, at which time there is a hearing to determine whether an adult sentence is appropriate or whether the youth has been successfully rehabilitated.
Blended sentencing is a creative effort to use the threat of a criminal sentence as leverage to facilitate compliance with juvenile court dispositional requirements. Data are not yet available to compare outcomes between cases in which similarly situated youth are retained in juvenile court with juvenile dispositions alone and cases in which the youth were transferred to criminal court outright. For the moment, the most policy-relevant questions are whether the juvenile procedures for blended sentencing conform with constitutionally required safeguards and whether the placements are developmentally appropriate. In the committee’s judgment, juveniles (offenders younger than 18) sentenced to terms of confinement (whether by juvenile judges or criminal court judges) should be placed in juvenile correctional settings when younger than 18, should
be entitled to all of the services they would have received if they had received a juvenile disposition, and, upon turning 18, should be entitled to placement in facilities and services available to young adult offenders. Their sentences should also be subject to formal review on an individualized basis to determine whether their criminal sentences should be adjusted in light of their mitigated culpability and prospects for successful adjustment in the community.
The scientific evidence is clear that a developmentally appropriate response to adolescent misbehavior recognizes the need to hold young people accountable and that adolescents’ developmental immaturity also requires that sanctions imposed on adolescents should be different from those imposed on adult offenders. “Juvenile offenders as a class are less culpable than their adult counterparts and the decision to prosecute a juvenile as an adult is one that should be made with careful deliberation on an individualized basis” (Listenbee et al., 2012, p. 189; National Research Council, 2013, p. 136).
Programs for Young Offenders in the Criminal Justice System
Since the introduction of the concept of “emerging adults” (Arnett, 2000)—a category that covers the period of development between the ages of 18 and 25—researchers, practitioners, and policy makers have debated the implications for the criminal and juvenile justice systems. Some have advocated extending the age of the juvenile justice system to 21 with a gradually diminishing “immaturity discount” for young people ages 21 to 25 in the adult system (Gupta-Kagan, forthcoming; Perker and Chester, 2017; Schiraldi et al. 2015). Others have proposed creating a third system for this age group (Rocque et al., 2017). Scott and colleagues (2016) rejected “raising the age of juvenile court jurisdiction or creating a third type of court” and argued instead for developmentally informed sentencing and correctional programming in criminal courts. Predictably some have questioned the very formulation of this developmental stage in the first place (Côté, 2014).
This debate prompted the National Institute of Justice to assemble a study group of 33 experts to review the literature on a range of issues related to the justice system and emerging adults (Loeber et al., 2013). They examined criminal career patterns, special categories of offenders, influences, risk and needs assessments, prevention, interventions, and the border between the juvenile and criminal justice systems. A key finding of their work is that 40 to 60 percent of juvenile delinquents stop offending by early adulthood, consistent with the “age-crime curve” theory, which demonstrates that most antisocial behavior peaks in late adolescence and declines rapidly in early adulthood. Indeed, the 2015 National Academies’
report, Investing in the Health and Well-Being of Young Adults, concluded that “one of the most important characteristics of young adults involved with the justice system is that, left on their own, most would soon desist from criminal behavior” (Institute of Medicine and National Research Council, 2015).
In 2016, the National Institute of Justice conducted an environmental scan to capture the range of developmentally informed correctional programming serving emerging adults in the justice system that might promote accountability and reduce reoffending. The resulting report (Hayek, 2016) documented approximately 45 programs newly focused on the emerging adult developmental stage, which fell into seven categories: young adult courts, probation and parole programs, district attorney-led programs, community-based partnerships, hybrid partnerships, prison-based programs, and advocacy and research programs. The common elements were a grounding in developmental science; significant collaboration across the justice system (e.g., courts, police, and prosecution) and across the system of care (e.g., mental health, substance abuse, education, social services) in partnership with community-based service providers; and case management to address the “intensity of services required to alter the trajectory for those involved in the justice system” (Hayek, 2016, p. 5). As an example, the report highlighted Roca, Inc., an innovative program in Massachusetts that tries to change the trajectory of the lives of young adults involved in the justice system (see Box 9-5).
Examples from Europe are instructive for states considering the challenges of addressing the needs of young adults within the existing adult system to improve outcomes and increase public safety. Twenty-eight out of 35 European countries have special provisions for emerging adults in their justice systems (Matthews et al., 2018). Germany, in particular, began developing a “minimum intervention” approach in 1923, where services, diversion, and nonpunitive approaches are emphasized. A specialized court has been established for youth between the ages of 14 and 21, which is required to limit confinement to violent offenses and, even then, the facilities are designed to encourage self-respect, promote education, and support rehabilitation. The living conditions are “normalized” with services such as “professional woodworking, metal working, culinary instruction and farming, with no use of solitary confinement or strip searching” (Matthews et al., 2018, p. 11). Across the European countries, the systems incorporate emerging adults, emphasize informal approaches and rehabilitation, and restrict or rely less upon incarceration than in the United States without compromising protection of the community.
For youth who do become involved with the justice system, it is important that they receive the resources and services needed for positive development and rehabilitation so that their contact with the justice system is beneficial. All adolescents have the potential to thrive and flourish if given the proper supports, particularly those aimed at improving educational and physical and mental health outcomes. When youth are provided with these opportunities, the justice system can be a pathway toward positive developmental trajectories. To this end, increased coordination and collaboration between the education, health, justice, and child welfare systems is necessary to ensure that involvement with the justice system is rare, just, not harmful and, ideally, beneficial. This section discusses the role of the health and education systems in supporting justice-involved youth (see Chapter 8 for a discussion of needed collaboration between the child welfare and justice systems).
Collaboration with the Education System
Providing high-quality education in secure settings presents unique challenges for administrators, teachers, and staff who are responsible for the education, rehabilitation, and welfare of the young people in their care. The more than 2,500 residential facilities housing juveniles in the United States need support from federal, state, and local educational agencies and their communities to improve services for detained youth. Key to these supports are efforts to foster facility environments that prioritize education and provide the conditions for learning, to recruit and retain qualified educators, and to provide rigorous and relevant curricula aligned with state academic and career and technical education standards (U.S. Department of Education, 2014).
The education of youth in juvenile justice facilities presents a number of challenges that previous research suggests might benefit from better collaboration between the juvenile justice and education systems. For example, previous estimates suggest that while perhaps 40 percent of youth in juvenile detention require special education services (Coffey and Gemignani, 1994), many of these developmental deficits have not previously been diagnosed (see, e.g., Macomber et al., 2010). Similarly, estimates from juvenile detention facilities in Cook County, Illinois, suggest that 66 percent of male youth and 74 percent of female youth met clinical criteria for at least one mental health disorder (Teplin et al., 2002). Too little is currently known about the quality of the screening methods used in both juvenile justice and education systems to identify special education or mental health needs, the legal or other barriers to successfully sharing information across systems about what is learned about what youth need, or what the consequences would be for youth from developing better screening and information sharing across systems. Deficiencies in these areas make it difficult to capitalize on opportunities to help youth successfully desist from delinquency and re-engage with school.
We also know from previous research that most of the general challenges of successfully educating adolescents are even more challenging within the juvenile justice system, so there may be important benefits from enhanced efforts by public school systems to support education within the juvenile justice context. For example, previous research on public K–12 systems suggests that, all else being equal, teachers on average prefer to work in schools serving more advantaged student populations (Engel et al., 2014). This means successfully staffing schools serving juvenile justice populations—who come disproportionately from economically and educationally disadvantaged backgrounds—will be particularly difficult, and may also be one reason for the high rates of teacher turnover reported in
schools serving juvenile detention facilities.19 Education systems may have an important role to play in supporting or incentivizing the supply of high-quality teachers to juvenile justice facilities, and in helping such facilities do a better job identifying the most effective teacher candidates for those positions. However, too little is currently known about how to make improvements on either the supply or the demand side of this teacher labor market in general (Jacob, 2007).
For those educators currently serving justice-involved populations, there is a need to improve professional development opportunities, given the unique challenges of education within that environment. Evidence is now accumulating about how to successfully provide professional development to improve student learning and teacher-student interactions generally (e.g., see Allen et al., 2011), and there may be value in ensuring that education systems provide these best-practice professional development opportunities for teachers within juvenile justice settings.
Similarly, there may be benefits as well from having the juvenile justice system support to the greatest degree possible the educational efforts of schools serving youth in the justice system. Youth in juvenile detention settings should be provided with psychosocial supports that position them to benefit as much as possible from educational opportunities during and following detention. Heller and colleagues (2017) show that juvenile justice staff can successfully provide these types of supports during nonschool time in ways that improve youth outcomes inside detention facilities and also reduce recidivism.
Collaboration with the Health System
The prevalence of justice-involved adolescents exhibiting physical or mental health problems is high. These youth have significantly higher rates of tuberculous, sexually transmitted infections (STIs), alcohol use (74%), and illegal drug use (85%) (American Academy of Pediatrics, 2011). Recent results from the Survey of Youth in Residential Placement indicate that at least 50 percent of youth in juvenile facilities have experienced anxiety, anger, and loneliness, and approximately 1 in 5 have previously attempted suicide (American Academy of Pediatrics, 2011). Moreover, according to the National Center for Mental Health and Juvenile Justice (2007), justice-involved youth are more likely to have experienced one or more traumas before entering the justice system, increasing their chances of having disruptive behavioral issues, such as oppositional defiant disorder.
Given the prevalence of health needs within the population of justice-involved youth, ensuring that the justice system provides necessary health
19 Office of Juvenile Justice and Delinquency Prevention (1994).
screenings and subsequent care is critical. Failure to provide adequate screenings and services can result in long-term health issues for adolescents, thus increasing their chances of re-offending in youth or as adults (Barnert et al., 2017; DiClemente and Wingood, 2017).
The most recent standards issued by the National Commission on Correctional Health Care require that youth in accredited facilities undergo a comprehensive health assessment within 7 days of arrival including, for example, a review of immunization records, TB screening, exposure to trauma, suicidal or violent behavior, and substance abuse (American Academy of Pediatrics, 2011). However, health screenings and care are not standard across juvenile facilities and often vary by state. For example, Pajer and colleagues (2007) found that the responsibility for conducting health screenings and care is inconsistent across facilities. Based on an analysis of self-report data, 62 percent of health screenings in U.S. juvenile detention facilities are conducted by the detention center staff. Those not conducted by staff may be assigned to either a contract provider (28%), private provider (3%), or public provider (7%) (Pajer et al., 2007).
Given the high percentage of detention center staff responsible for conducting screenings in juvenile facilities, adolescents will likely have better health outcomes if staff are trained to identify and respond to mental health issues when they surface. According to the Substance Abuse and Mental Health Services Agency (SAMHSA), all juvenile justice staff should be provided with continuous training in topics such as cultural sensitivity, administering and interpreting screening instruments, identifying reading difficulties, interpersonal communication, and counseling techniques (Center for Substance Abuse Treatment, 2000). The National Center for Mental Health and Juvenile Justice (2007) further recommends that the juvenile justice system provide trauma-informed services that include follow-up screenings and connection to trauma-specific services when needed.
It is important to note that screening for and responding to health issues is needed at every stage in the juvenile justice process, including the time during which youth are transitioning out of the system. Recent research suggests that individuals who were incarcerated in adolescence tend to have high-risk sexual behaviors, adult depressive symptoms, and an increased risk for suicide (Abram et al., 2017; Barnert et al., 2017; DiClemente and Wingood, 2017). Community-based re-entry programs that encourage collaborative partnerships among systems, families, and communities may help youth during this transition as they return to their schools, neighborhoods, and families, reducing the chances that they will re-offend in the future and improving their employment and health outcomes (Mears and Travis, 2004; Youth.gov, 2018).
Given the resounding scientific evidence about the neurobiological and socio-behavioral development of adolescents, it is clear that both the juvenile justice and criminal justice systems need to adopt policies and practices that support the positive development of all young people. While the juvenile justice system has embraced a wave of developmentally motivated reforms in this area in recent years, much more needs to be done to tackle the continued racial disparities in the system and to ensure that those youth that do become system-involved receive the necessary supports to achieve their full potential. Similar reform efforts that recognize the unique developmental needs of older adolescents and young adults are emerging within the criminal justice system. It is important that these efforts be guided by the science of adolescent development and the core principles of a developmental approach.
As noted above, the previous National Academies’ reports on juvenile justice outlined recommendations for needed reforms to ensure that the juvenile justice system accounts for and attends to the developmental needs of youth. This committee reaffirms those recommendations, and offers several additional recommendations to promote a developmentally informed justice system, including continued opportunities within the juvenile justice system and emerging opportunities in the criminal justice system. Box 9-6 outlines these recommendations. Taken together, they constitute a blueprint for achieving a developmentally appropriate justice system.
RECOMMENDATION 9-1: Reduce disparities based on race, ethnicity, gender, ability status, and sexual orientation or gender identity and expression among adolescents involved in the justice system.
Given increasing racial disparities in the justice system, and growing evidence as to disparities related to ethnicity, gender, ability status, and sexual orientation, Congress should ensure proper implementation of the recently reauthorized JJDPA, including oversight of state efforts to monitor and reduce racial and ethnic disparities with an increased focus on research and data collection. The Office of Juvenile Justice and Delinquency Prevention (OJJDP), in accordance with requirements laid out in the JJDPA, should require at a minimum that all states furnish specific, rigorous metrics on the race and ethnicity of youth involved in the justice system.
School systems should leverage available federal, state, and local funding to implement evidence-based programs to improve social and structural conditions to reduce racial disparities and student referrals to the justice system. Law enforcement officials and other institutions and community organizations should undertake prevention programming designed to
reduce justice-system involvement by disadvantaged groups, based on social and structural inequities differentially experienced by those groups.
RECOMMENDATION 9-2: Ensure that youth maintain supportive relationships while involved in the justice system and receive appropriate guidance and counsel from legal professionals and caregivers.
Developmental science is clear that supportive relationships are critical for positive youth development and play a protective role. Given this understanding, juvenile facilities should amend policies that curtail visitation rights as punishment, and states and localities should implement policies and practices to assist families in overcoming barriers to prison visitation so that youth can remain connected to parents, caregivers, and other relatives.
The juvenile justice system is complex, and many caregivers and juveniles do not have the specialized knowledge required to successfully navigate the system. Probationary programs should connect parents and caregivers with community and educational resources that can teach them how to help their child succeed and avoid future interactions with the justice system. State legislatures and courts should ensure that justice-involved youth are provided with competent counsel throughout the legal process and ensure that adolescents under the age of 15 are not allowed to waive the right to an attorney or the right to remain silent without prior consultation with an attorney.
RECOMMENDATION 9-3: Implement policies that aim to reduce harm to justice-involved youth in accordance with knowledge from developmental science.
Extensive evidence demonstrates that harm after exiting the juvenile justice system may result from system interventions that impede or prevent a successful transition to adulthood by making it difficult for youth to productively re-enter their communities. The 2014 National Academies committee noted, “States and local jurisdictions should enact laws and policies to keep official records of a juvenile’s encounters with the justice system strictly confidential, except in extraordinary circumstances involving a compelling need to protect public safety, so as to fully preserve the youth’s opportunities for successful integration into adult life (p. 19).” This committee reaffirms that recommendation.
In response to laws that criminalize non-violent sexual exploration (such as sexting) and evidence questioning the efficacy of sex offender registries, especially for juveniles, Congress and state legislatures should enact legislation to eliminate the use of sex offender registries for nonviolent juveniles.
Given the robust evidence of the harmful effects of solitary confinement, the federal government or philanthropic organizations should fund research on effective alternatives to solitary confinement so that detention facilities will be able to scale back or eliminate the use of this practice as soon as practicable.
RECOMMENDATION 9-4: Implement developmentally appropriate and fair policies and practices for adolescents involved in the criminal justice system.
The committee’s recognition that development occurs through the mid-twenties informs its call for the criminal justice system to implement developmentally appropriate and fair policies and practices for adolescents involved in the criminal justice system. To this end, legislatures should restore judicial discretion in decision making about transferring juveniles to or from criminal courts. Prosecutors and courts should be guided by the principles of proportionality and individualization with consideration given to the maturity, needs, and circumstances of the individual offender when making transfer decisions.
Judges sentencing juveniles in criminal courts should place these youth in juvenile correctional settings rather than adult correctional facilities. These youth should be entitled to all of the services they would have received if they had received a juvenile disposition and, upon turning 18, should be entitled to placement and services available to young adult offenders. Courts should conduct formal review of youths’ criminal sentences on an individualized basis to determine whether the sentences should be adjusted in light of their mitigated culpability and prospects for successful adjustment in the community.
RECOMMENDATION 9-5: For those youth in the custody of the justice system, ensure that policies and practices are implemented to prioritize the health and educational needs of adolescents and avoid causing harm.
For those youth in the custody of the justice system, ensure that policies and practices are implemented to prioritize the health and educational needs of adolescents and avoid causing harm. Correctional programming for adolescents and young adults in the criminal justice system should promote accountability and reduce re-offending through developmentally appropriate services in both correctional facilities and residential and community settings, including mental health, substance abuse, education, and social services.
Researchers, in partnership with practitioners, should urgently examine and evaluate effective alternatives to solitary confinement that promote the healthy development of individual youth and protect the safety of all in the facility.
State and local educational agencies should work in partnership with their justice system counterparts to ensure that rigorous and relevant curricula for adolescents are delivered in residential facilities and that these curricula are aligned with career and technical education standards and meet the needs of all youth, including those with disabilities and English learners.