Closing state-run juvenile incarceration facilities is only a first step in overhauling an organizational culture that places a greater value on “custody and control” than on rehabilitation and counselling, according to a forthcoming paper in the Lewis & Clark Law Review.
Noting that 66 percent of youth facilities holding 200 or more residents have shut down across the country since 1999, Jessica K. Heldman, a professor at the University of San Diego School of Law, argues that the foundations have been laid for a major transformation of youth justice―if states are willing to take the plunge.
Heldman focused on one of the nation’s most ambitious juvenile justice measures, a bill signed into law by California Gov. Gavin Newsom last October mandating a phased closure of Division of Juvenile Justice facilities in the state starting in July. SB823 also established an Office of Youth and Community Restoration.
The measure should be seen as a bellwether moment for other states, wrote Heldman.
“By envisioning a system that essentially works to put itself out of business, states have the opportunity to disrupt the persistent systemic culture of custody and control, ushering in a new and effective approach that has the potential to endure.”
The harder challenge, she argues, is changing the “persistent culture of custody and control that allows for continued criminalization of youth, particularly youth of color, and has long stymied the realization of the system’s rehabilitative ideal.”
According to Heldman, the converging national focus on racial justice and public health makes this an “opportune time” to reform a system of juvenile incarceration that dates back to at least 1825, when “delinquent” and impoverished children were housed in reformatories that used corporal punishment as a preventative action against further criminal activity.
Now, she added, “the science of adolescent development embraced by the U.S. Supreme Court and the substantial evidence regarding what works to prevent juvenile reoffending provides states with the tools to transform the culture of juvenile justice.”
That means, among other things, revisiting the juvenile system’s original mission as “a child welfare agency—a public entity entrusted with responsibility for overseeing the youth’s development throughout his or her childhood.”
The system instead has evolved into a tool for punishing youth similar to the adult corrections system, without the same protections of due process, she asserted.
In California specifically, the evolution has been driven by the “tough on crime” and “superpredator” focuses of the 1980s and 1990s which provided the rationale for a “justice model” that prioritized retribution, a model still in place in many facilities today.
Although the juvenile crime rate dropped in the 1990s, a push for reform didn’t come until 2004, with a case adjudicated in the California Supreme Court. In Farrell v Allen, the court upheld a complaint that juvenile facilities operated by the California Youth Authority “denied adequate medical, dental and mental health care and experienced conditions and practices that threatened their safety,” said Heldman.
But even after Farrell v Allen, California juvenile detention centers saw high rates of violence, isolation and suicide―factors that remain constant in similar facilities across the nation, said Heldman.
With the rate of juvenile crime decreasing―an 86 percent drop between 1988 and 2016 ― and likely more so as SB823 is implemented, the culture behind the juvenile justice system could shift, said Heldman.
In order for that to happen, states should adopt a “clearly defined purpose and direction” in their statutes to guide the process of reform, she added.
The danger is allowing ”vague” language that gives authorities more discretion in their treatment of justice-involved youth.
“The vague language in California’s current juvenile court purpose clause indicating that courts and agencies are to hold themselves accountable for results should be replaced by a more specific commitment by the state to require juvenile justice system participants to collect and report meaningful data regarding practices, programs and outcomes in order to conduct valuable quality assurance within the system,” said Heldman.
The author also calls for the new Office of Youth and Community Restoration to oversee the transition of youth from state facilities to county facilities under SB823 and enforce a human- services and trauma-informed approach to young people.
“This is vital to correcting the tendency for courts to over-rely on institutionalization and to order boilerplate supervision terms that are applicable to all adjudicated youth, serving little rehabilitative purpose,” wrote Heldman.
Many states have begun to evolve in the direction of what has been called a Balanced and Restorative Justice (BARJ) approach, which “views the juvenile justice system as responsible to communities, victims, and offenders in equal part, emphasizing that no single interest should benefit at the expense of the others.”
But the BARJ approach, born in the tough-on-crime era, lacks focus on youth development, Heldman said.
And even when facilities prioritize rehabilitation geared towards a youth’s future, they might not have the funding needed to enact substantial change.
By closing existing juvenile detention facilities, funds could be reinvested into community engagement programs or even into reforming current facilities to be more welcoming and inclusive of family and community building.
“A deep understanding and commitment to policies promoting the research and data behind the recent developmental approach provides an opportunity to break this cycle in California and other states shutting down large correctional facilities and investing instead in local and developmentally appropriate programs and practices,” said Heldman.
Heldman listed several factors that would help reform the way the juvenile justice system operates, including handling low-risk youth, prioritizing other methods of correction other than incarceration, paying attention to the needs of the youth, and addressing trauma.
Addressing Youth of Color
According to Heldman, shifting the culture within the juvenile justice system would also benefit youth of color, who are disproportionately affected by the system.
Black adolescents are also over eight times more likely to be arrested for a felony than their white peers, the paper said. According to Heldman, not only are Black juveniles more likely to end up incarcerated, but they’re also more likely to be treated badly while there.
“Progress on reducing disparities in local jurisdictions is often hampered by denial and defensiveness that arises when discussing not only the history of, but also the current existence of, racism and bias in the juvenile justice system,” she added.
“Any effort to reduce the number of youth in secure facilities must focus on addressing the disproportionate rate of youth of color in all types of residential facilities,” the paper said.
“Any effort to replace large correctional facilities with smaller therapeutic facilities located near youths’ homes must ensure a connection with the community and a recognition of historical racial and ethnic traumas and discriminatory practices
“Any reinvestment must help address the lack of services and adequate schools and facilities in communities of color; and any lasting culture change must acknowledge the existence of systemic racism and implicit bias as well as explicit racial and ethnic discrimination.”
Heldman also highlighted the importance of setting training standards for those employed within the juvenile justice system, recommending standard training in trauma, discrimination, bias among others.
Correctional staff who began working during the “tough-on-crime” era could be perpetuating policies that still focus on harsh punishment and retribution rather than a juvenile’s future and rehabilitation. Working to educate these leaders within the system could help further the shift in culture, said Heldman.
“The most well-intentioned reforms in policy and practice will fail to be implemented if the organizational culture remains resistant to change,” said Heldman.
Jessica K. Heldman is Fellmeth-Peterson Professor-in-Residence in Child Rights, University of San Diego School of Law