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New report finds child incarceration of non-violent offenses still widespread

By Gary Gately
Juvenile Justice Information Exchange

WASHINGTON – More than half of U.S. states allow children to be detained for repeated nonviolent “status offenses” such as skipping school, running away from home or possession of alcohol, a new report says.

The revelation comes more than 40 years after the landmark Juvenile Justice and Delinquency Prevention Act (JJDPA) stipulated that in states receiving federal juvenile justice grants, no child should be locked up for such minor transgressions. They’re called status offenses because they are considered crimes owing only to a youth’s status as a juvenile.

The provision of the 1974 JJDPA calling for “deinstitutionalization” of status offenders had led to a marked decline in detention of these youths.

But the JJDPA, the main federal juvenile justice law, was amended in 1980 to include an exception allowing judges to confine a youth adjudicated guilty for a status offense if the child had violated a “valid court order” not to repeat the offense.

The report, Status Offenses: A National Survey, by the Washington-based Coalition for Juvenile Justice (CJJ), showed most of the cases of children being detained for status offenses occurred in just a handful of states. But judges can still detain repeat status offenders under the exception in 26 states and Washington, D.C.

CJJ’s 64-page report found the names used to describe status offenses and what constitutes a status offense varied widely among states.

In an email, Naomi Smoot, senior policy associate at the nonprofit CJJ, pointed out that some states include catch-all provisions that apply to behaviors that are illegal only for minors, while other states use status offense laws to deal with new and emerging issues uniquely applicable to children such as bullying and sexting.

The findings come amid growing opposition to incarcerating children for such offenses because doing so endangers them, can cause long-term trauma, often leads to further involvement with the justice system and tends to ignore the underlying reasons for the offenses.

“What we’ve seen in the research is that status offender youth who are put in detention run the risk of both physical and sexual assault at the hands of both guards and their fellow youths,” Smoot said in an interview.

“There’s a large number of youths who are put into detention for status offense behaviors in the same living units as children who have engaged in much more serious and much more dangerous behaviors.”

CJJ, along with a wide array of other advocates for juveniles and the Reno, Nev.-based National Council of Juvenile and Family Court Judges (NCJFCJ), call for diverting status offenders from the juvenile justice system altogether.

Ironically, the NCJFCJ had lobbied for the 1980 valid court order exception, at a time of clamor for taking action to reduce status offenses, said Melissa Sickmund, director of the Pittsburgh-based National Center for Juvenile Justice (NCJJ), the research division of NCJFCJ.

“They said, ‘We have kids who have not followed rules we set for them. What else do you want us to do?’” Sickmund said. “And so the exception got put into place.”

Now the judges council supports elimination of the exception, she noted.

“If you’re detaining the kid — unless they are really a threat to the community — it may be causing more harm than good, it may be putting them in the presence of other bad actors who are worse than them and they just learn bad stuff,” Sickmund said. “We could be traumatizing them, and it doesn’t help and it’s expensive.”

To understand status offenders, CJJ said in a December report, it’s critical to understand youths’ brain development and adolescent behavior patterns.

Recent research has shown adolescents’ brains are not fully developed until their mid-20s and that youths are more susceptible than adults to peer pressure, more reckless and impulsive, more likely to take risks and less likely to consider long-term consequences. Notably, however, the research also shows juveniles are especially amenable to rehabilitation.

The NCJJ estimates that in 2011, juvenile courts handled 116,200 status offense cases, with 8,800 involving youths being detained at some point between referral to court and case disposition. Youth were adjudicated guilty in 66,400 of those petitioned cases, with 37,200 placed on probation as the most severe consequence.

Some of the youth who were held may not have been detained in violation of the JJDPA, though: Under the act, status offenders may be held under one of several exceptions to the act’s requirements. Youths, for example, can end up being held briefly before initial court appearances. But advocates argue that even these short stays can traumatize youths and subject them to risk of abuse.

On a hopeful note, the new report pointed out that in the overwhelming majority of states, status offenders are rarely detained.

The federal Office of Juvenile Justice and Delinquency Prevention reports that Washington state led the nation in use of the valid court order exceptions, with 2,705 cases; followed by Kentucky, 1,048; Arkansas, 747, and Colorado, 356. (Most of the data, for a one-year span, was from around 2010-2012.) At the other end of the spectrum, a dozen states that retain the valid court order exception used it less than 100 times in a one-year period.

Alessandra Meyer, senior program associate at the Center on Youth Justice at the nonprofit Vera Institute of Justice in New York City, said in an email more and more states are looking to alternatives to detention of status offenders.

“Many states have changed their approach to youth who commit status offenses, embracing community and school-based responses that reduce reliance on the juvenile justice system,” Meyer said.

“As shown in CJJ’s survey, however, too many states still allow courts to use the valid court order (VCO) exception to lock up youth for non-delinquent behaviors such as running away from home and skipping school.”

Like others, Meyer pointed to a bipartisan measure introduced in December to reauthorize the JJDPA that would, among other things, phase out the valid court order exception over three years.

A new JJDPA reauthorization bill – expected to be introduced in this session of Congress by Sen. Charles E. Grassley, R-Iowa, the chairman of the Senate Judiciary Committee, and Sen. Sheldon Whitehouse, D-R.I. — also would likely phase out the exception.

“We would love to see the valid court order exception become a thing of the past,” CJJ’s Smoot said. “Our position is that children should never be incarcerated for status offense behaviors because these are behaviors that are a sign of a larger underlying behavior in the child’s life.

“Often, there’s something either going on at home or an undiagnosed disability, for example, that causes a child to fall behind in school. There are better community-based responses, and we say as an organization incarceration is never an appropriate response.”

Often, CJJ points out, LGBTQ youths run away from home because they don’t feel welcome there.

The organization also recommends law enforcement connect possible status offenders and their families to necessary services instead of charging or detaining the youths and says education systems should seek to address underlying causes of truancy and try to avoid court involvement or suspension from school.

And CJJ says children should not be allowed to waive counsel in status offense cases unless the waiver is on the record, the court has weighed the child’s understanding and capacity and the waiver occurs in the presence of and with consultation of an attorney.

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