The Promise of Adolescence Realizing Opportunity for All Youth (2019) / Chapter Skim
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9 Justice System
9 Justice System
Pages 295-346
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From page 295... ...
. These patterns highlight the possible tensions between the different aims of the juvenile justice system, the criminal justice system, and the s ocial service agencies and education system.
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From page 296... ...
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.
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From page 297... ...
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)
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From page 298... ...
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)
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From page 299... ...
. 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.
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136) , of dropping out of high school, and of involvement in the adult criminal justice system (Aizer and Doyle, 2015)
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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.
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From page 302... ...
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)
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208: Revises juvenile sex offender offenders 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. continued
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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 Act No.
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3. Given that only a small percentage of youth will continue to offend into adulthood unless justice system interventions themselves im pede 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 success ful maturation.
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From page 306... ...
However, unduly harsh interventions and negative interactions be tween 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.
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From page 307... ...
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.
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. 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)
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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.
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Indeed, Black youth consistently report more negative attitudes toward the police than White youth (Hurst et al., 2000; Peck, 2015)
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. 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.
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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.
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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 r ecords, avoiding overuse of sex offender classification, and curtailing use of solitary confinement. Family Engagement 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.
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From page 314... ...
. 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 justiceinvolved youth is key to encouraging parental engagement (Burke et al., 2014; Cavanagh and Cauffman, 2017; Vidal and Woolard, 2016)
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From page 315... ...
. To facilitate such parental visits, juvenile facilities should limit the use of restrictions on visitation rights as punishment.
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These models pro vided solid evidence that justice-involved youth can be successful and productive members of society if consistently provided with the right tools during and after system involvement. Close to Home uses the Risk-Needs-Responsivity framework and the Posi tive Youth Development framework, along with seven core principles to guide their work.
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From page 317... ...
. 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 circumtances s 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 lit erature and in this chapter as well.
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From page 318... ...
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.
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From page 319... ...
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 addi tion 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)
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From page 320... ...
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)
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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.
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From page 322... ...
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.
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From page 323... ...
This discussion highlights the potential benefits from making juvenile records available for risk prediction by judges and other criminal justice fficials; but of course there are also potential costs. However, if these records o are made available to the general public, rather than being restricted to use by judges and other officials, they are likely (all else equal)
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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.
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. The data suggest that there would be little risk to public safety if sex offender registration were to be eliminated for non-violent juveniles.
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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)
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From page 327... ...
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.
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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)
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From page 329... ...
This was also frustrating because if I had court the same day the lockdown happened, my court date got pushed back, sometimes almost a month. It shouldn't be that if one youth acts out in a facility, we are all punished even when we did not cause any trouble." 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.
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From page 330... ...
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.
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From page 331... ...
; 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")
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From page 332... ...
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.
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From page 333... ...
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 policyrelevant questions are whether the juvenile procedures for blended sentencing conform with constitutionally required safeguards and whether the placements are developmentally appropriate.
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From page 334... ...
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)
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From page 335... ...
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.
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From page 336... ...
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)
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From page 337... ...
. 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)
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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.
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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.
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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.
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From page 341... ...
Recommendation 9-3: Implement policies that aim to reduce harm to justice-involved youth in accordance with knowledge from developmental science. A. Congress and state legislatures should enact legislation to eliminate the use of sex offender registries for non-violent juveniles.
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A. 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, sub stance abuse, education, and social services. B. esearchers, in partnership with practitioners, should urgently examine R and evaluate effective alternatives to solitary confinement that promote the healthy development of individual youth and protect the safety of all in the facility.
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From page 343... ...
Developmental science is clear that supportive relationships are critical for positive youth development and play a protective role. Given this under standing, 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.
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From page 344... ...
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.
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JUSTICE SYSTEM 345 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 c urricula are aligned with career and technical education standards and meet the needs of all youth, including those with disabilities and English learners.
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