Home Law International Handbook of Juvenile Justice
CUSTODIAL RULES FOR JUVENILES
In the United States, juveniles may be confined to a variety of nonsecure (e.g., group homes, halfway houses, camps) and secure (e.g., boot camps, industrial schools, jails) institutions, although judges are encouraged to use the least restrictive option possible in confining the juvenile. Since the mid-1990s, the youth confinement rate has significantly dropped, as 381 youths per 100,000 were confined in 1995, but by 2010 the rate had dropped to 173 youths per 100,000 (Sickmund et al. 2015). In 2013, only 55,000 juvenile offenders were held in residential placement facilities. Of juveniles in residential placement, 37 % were held for person offenses, 24 % were held for property offenses, and 7 % were held for drug offenses, while the remaining juveniles were held for public order offenses, technical violations, and status offenses. Roughly 70 % of these juveniles were held in public facilities, with the remainder in private facilities. Similar to the arrest and petitioning stages of the juvenile justice system, minority youth were overrepresented in custody in 2013. Only 32 % of juveniles in residential placement were White, 40 % were Black, and 23 % were Hispanic. On the other hand, females comprised 14 % of juveniles in custody, presenting challenges for management in residential facilities. They tended to be younger than males in custody, as 37 % of females were under the age of 16 and 30 % of males were under 16.
By the 1970s, growing recognition that juveniles are different from adults in their degree of culpability, maturity, and self-control and that confinement within the system actually worsens long-term outcomes for juvenile delinquents resulted in the passage of the Juvenile Justice and Delinquency Prevention Act (JJDPA) in 1974 (Hughes 2011). The passage of the act led to two major changes for confined juveniles—the elimination of confinement for status offenders and the requirement that confined juveniles be sight and sound separated from adults.
Status offenses continue to be an important avenue for referral to the juvenile court. Status offenses are acts that if committed by an adult would not be considered violations of the law (e.g., curfew violation, incorrigibility, truancy). Some states have moved to handle status offenses in a manner similar to neglect or dependency cases as indicators of social problems rather than delinquency. Following the passage of the JJDPA, states receiving federal funding for juvenile justice institutions were required to deinstitutionalize status offenders (DSO).
Status offenders continue to be among the most difficult challenges for most juvenile court jurisdictions.
While it was recognized that juvenile detention worsened reentry outcomes, the director of the National Center for Juvenile Justice reported that many judges were critical of the DSO, as judges claimed, “we have kids who have not followed rules set for them. What else do you want us to do?” (Gately 2015, para 13). The result was the passage of the Valid Court Order (VCO) exception, an amendment of the JJDPA in 1980. Twenty-seven states and the District of Columbia currently allow for exceptions to be made when confining a juvenile status offender, as long as the juvenile violated the terms of probation (Smoot 2015). For example, a juvenile who is adjudicated delinquent for a status offense may be placed on probation with the condition to attend school. The juvenile may subsequently fail to attend school and be rearrested. The juvenile may then be adjudicated delinquent for the probation violation, even though the probation initially stemmed from a status offense. While the prevalence of status offenders committed to juvenile institutions has decreased in recent years, in 2013 nearly 2000 juveniles were reportedly committed to institutions for the commission of a status offense (Sickmund et al. 2015). This issue presents challenges in juvenile institutions, as status offenders are then housed with more serious and violent offenders (Levin & Cohen 2014). This means that juveniles who have committed relatively minor offenses will be exposed to a criminogenic environment that may hinder their desistance from crime.
The JJDPA also required that confined juveniles be sight and sound separated from adults. One loophole remains where juveniles who have been charged as adults can be housed with adults, even prior to a conviction in criminal court (Arya 2007). Juveniles detained in jails pretrial experience dire conditions when compared with juveniles retained in the juvenile system. Juveniles in jails are frequently the victims of physical and sexual abuse by adult inmates. The solution that many jails resort to is solitary confinement of juveniles, which frequently contributes to mental illness and in many cases results in juveniles committing suicide. The irony of confining juveniles in jails is that a large number of juveniles are not convicted in the adult system. For example, only 45 % of juveniles placed in the criminal court through a statutory exclusion were convicted (Juszkiewicz 2007). Several attempts have been made in recent years to reauthorize the JJDPA to remedy these issues, including ending confinement of all status offenders and maintaining sight and sound separation of all juvenile delinquents from adult offenders, but these changes have yet to take place (Smoot 2016).
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