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Protecting Juvenile Offenders From Adult Inmates, and From Themselves

The only federal law that regulates detention conditions for juveniles is due for an upgrade.
John Jay College of Criminal Justice. (Photo: Scott Beale/Laughing Squid)

John Jay College of Criminal Justice. (Photo: Scott Beale/Laughing Squid)

The juvenile justice system in America is so harsh, so expensive, and so altogether ineffective, that it is “almost Third World in punitive measures,” said New York Chief Judge Judith Kaye at a conference at John Jay College of Criminal Justice on Friday. “Shame on us for doing this to our kids, for greasing the downward spiral,” she said, according to conference coverage by The Crime Report.

But the same week, youth justice advocates also saw reason for hope—in a new bipartisan agreement about a groundbreaking, but outdated, bill, the Juvenile Justice and Delinquency Prevention Act of 1974. They hope that its re-authorization can now help improve the conditions in which 60,000 young people are being held in jail or juvenile detention centers at any given time in the United States.

Before the turn of the last century, there was no such thing as juvenile court, says Marcy Mistrett, co-chair of Act4JJ and CEO of Campaign for Youth Justice. “Wayward youth” were not given any special designations or benefits of the doubt, and were funneled into the adult criminal justice system. By the 1960s, children and teens’ rights in the system had become slightly more clearly defined, but designations and treatment still differed among states and jurisdictions. “Depending on where you lived, you were treated very differently,” Mistrett says.

The Innocence Project has found that black juveniles are disproportionately likely to be falsely accused of crimes than other groups—and more likely to falsely confess to crimes they did not commit.

It wasn’t until 1974, with the passage of the first JJDPA, that any federal oversight came into play. In exchange for funding, states had to agree to four main categories of protections for their juvenile offenders. They could not imprison youth for “crimes” that are only technically crimes because of the offenders’ age (like truancy, drinking, or running away from home), and they couldn’t put juveniles in the same places as adult offenders (a mix that often brings with it the potential of assault in prison, and recidivism afterward). States that signed on also had to try to address the problem of the disproportionate contact that children and teens of color have with every stage of the cops, courts, and corrections process.

This last issue has quite obviously not been resolved in the 40 years since. Black children and teens are twice as likely to be arrested as their white peers, according to a Sentencing Project report. The Innocence Project has also found that black juveniles are disproportionately likely to be falsely accused of crimes than other groups—and more likely to falsely confess to crimes they did not commit. The JJDPA tries to address problems like this by mandating that states collect data about racial and ethnic disparities in their juvenile systems, and to be transparent about what they find.

“We like to say that the JJDPA is like the ‘floor’—at a minimum, this is how we should all be treating juveniles,” Mistrett says. But it’s outdated; the last time the bill was re-authorized was 2002. In the years since then, the science about how “the teenage brain” affects decision-making—and how youths are disproportionately harmed by harsh punishments—has come a long way, and Mistrett says a new set of policies should reflect that. “It has taken this long for advocates to find another bill sponsor and somebody willing to say that this is a priority.”

Advocates did eventually find those sponsors in Senator Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, and Senator Sheldon Whitehouse (D-Rhode Island). Whistleblowers at the Justice Department recently told the committee that many states were not following the requirements, but were receiving the promised funding anyway. That got Grassley’s attention. “Congress designed these grants to be earned each year—not to be handed out as entitlements,” he said at a hearing last month, a hearing that was a precursor to the re-authorization introduced just last week.

Grassley and Whitehouse’s version improves the original act by, among other things, calling for more mental health and substance-abuse-treatment professionals to be drawn into the juvenile system. It also closes the loophole that allows juveniles to be detained with adults if they have been tried as adults. (Advocates say offenders under 18 should always be housed with other youth, no matter what their crimes.) The language of the new bill also directly references new findings in the science and psychology of juvenile offending, like the research that shows that kids—especially non-violent, first-time offenders—can get more effective treatment close to home in their own communities, rather than in faraway institutions, or mixed in with violent and adult offenders.

As hopeful as Mistrett is that this re-authorization bill will pass, she says that the next fight should focus on its funding. The JJDPA remains voluntary, not compulsory, for states that choose to receive federal money in exchange for following the law’s four core protections. Almost all states do—but that could change, as the requirements increase but the rewards do not.

“The amount of funding has been decimated over the past decade,” Mistrett says. “So our concern is, we’ve made this bill more updated, which means work for states—and if the money doesn’t come through with it, then they could opt out.”

True Crime is Lauren Kirchner's weekly column about crime and criminal justice issues.