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One Size Does Not Fit All: A Slippery Slope to Increased Juvenile Incarceration

The following is a guest blog by James Bell, Founder and Executive Director of the W. Haywood Burns Institute. HBI and Community Justice Network for Youth are partners in CMJ’s Racial Justice Framing Project.

*Pacifica’s Mitch Jesserich spoke to James about reauthorization of the JJDPA and the BI’s new report!

A recent incident in Omaha, Nebraska brings urgency to an issue soon to be debated in Congress regarding the handling of youth offenders by juvenile and criminal justice systems. In this case, police shot a 15-year-old boy in the chest following a traffic stop. Investigators said the boy shot at police first. The case has led one local senator to call for an overhaul of Nebraska’s juvenile justice system that would identify “aggressive juvenile offenders.”

This is a dangerous reaction to a singular incident. But it is not uncommon. Politicians often legislate by anecdote. When all you have is a hammer, everything looks like a nail.

When one examines this case further, it becomes clear that for Nebraska State Sen. Brad Ashford to use this particular incident as an example of why the city’s “most aggressive juvenile offenders need to be more readily identified,” is a slippery slope. Ashford told an Omaha television station that he is working on legislation that would do just that.

“The best way to unclog the juvenile court system, and the best way to prevent violence amongst juveniles, is to catch these young people early as they exhibit behaviors that indicate they will very likely shoot somebody someday,” Ashford told KETV Omaha.

There is no evidence that any justice system can viably identify and “catch” potential violent offenders. Indeed, years of reactive legislation by politicians demonstrate that just because they have a bully pulpit and power does not make them informed, thoughtful or effective. In fact, Sen. Ashford’s efforts could actually result in an increase in the use of incarceration for juveniles and adult lock-ups. This is an alarming reaction for those who use data to drive policy and practice. Research shows that youth confined in adult jails and lock-ups are more likely to re-offend upon release and while confined are at pronounced high risk of suffering assault and committing suicide.

Congress is expected to soon consider the reauthorization of the federal Juvenile Justice and Delinquency Prevention Reauthorization Act (JJDPA), which among many provisions that ensure protection for youth in juvenile and criminal justice systems, would help to keep youth awaiting trial in criminal court out of adult lock-up and ensure “sight and sound separation” in the limited circumstances where they are held in adult facilities. This is sound public policy. Any rational civil society values the separations of young people and adults in confinement. If reauthorized, the JJDPA would also permit States to continue to house and rehabilitate youth convicted in adult court in juvenile facilities until they reach a certain age.

But sound legislation based on data and research is often threatened by political rhetoric and emotional reaction, as we have seen across the country in our work to reduce racial and ethnic disparities in local juvenile justice systems. In this particular case, Omaha’s police union president, Aaron Hanson, responded to the incident by saying the case and others like it have “to do with the fact that many of these youthful violent offenders are sent through the juvenile justice system, as opposed to the adult criminal justice system.”

This is a familiar line of thought that is woefully inaccurate. Such thinking was first popularized by in the late eighties by John Dilulio, a Princeton political scientist who coined the phrase “super-predators.” Soon thereafter, politicians and the media adopted this phrase and ushered in an avalanche of draconian laws based on anecdote and worse-case scenarios rather than actual data or research. Those laws remain today and are responsible for the notion of “throw-away” youth. We do not increase public safety by using detention early and often for young people in trouble with the law.

This particular case should be handled individually, applying the facts and the law, and not as a launching pad for legislative short-term gain. Today, a majority of youth in detention are incarcerated for minor and nonviolent offenses. Two-thirds of youth in detention are youth of color, though they are only one-third of the total U.S. youth population. In other words, African American youth are 5.5 times more likely to be detained than White youth, while Latino youth and Native American youth are both 2.5 times more likely to be detained than White youth.

The JJDPA reflects a better approach. When passed, it would limit the amount of time that juveniles are detained for “nondelinquent status offenses,” such as truancy, running away or violating curfew, alcohol and tobacco laws. Its other vital provisions include increasing financial incentives for States to improve diversion programs for youth with mental health and substance abuse needs; directing States to develop policies and procedures to eliminate the use of isolation and restraints, and to enhance alternatives to detention and transitional services.

Importantly, the JJDPA would also direct States and localities to actively work to reduce racial and ethnic disparities. Today, research demonstrates that youth of color are incarcerated more often than White youth even when charged with the same category of offense. Currently, the JJDPA requires States to “address” disparities within the juvenile justice system, but it does not require oversight of reduction efforts, accurate collection of relevant data, development of work plans with measurable objectives, or regular monitoring, evaluation, and reporting.

We hope that this bill will move through the Senate Judiciary Committee and to the floor of the Senate before the end of the year. And we trust that the Senate will do everything within its power to preserve the prevention focus of the JJDPA by guarding against any amendments that would link the JJDPA to provisions or other forms of federal legislation that introduce new federal categories of juvenile crime, new or enhanced federal penalties affecting juveniles, or incentives for States to advance new or enhanced penalties for juveniles.

How long are we as a nation going to allow justice policy to be determined by anecdote, storytelling and worst-case scenarios? When are we as a society going to pierce the veil of supposedly “tough on crime” legislation? If and when we do, we will find that we are a safer and more productive society by being “smart on crime.” That means allowing the court system to do its job for violent crimes, while not over-reacting with blanket legislation to any dramatic incident that grabs media attention. We must act now to ensure the best outcomes for our future generations.

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