I attended the recent annual conference of the National Council of Juvenile and Family Court Judges (NCJFCJ) to give the closing plenary about judicial leadership off the bench.
Immediately before my closing I attended a workshop on truancy led by Judge Joan Byer of Louisville, Ky., and Dr. Shawn Marsh of the NCJFCJ. They offered some great ideas and further empowered me for my closing keynote speech on the importance of working together in the community to help our kids avoid the trauma of detention -- and it is traumatic despite what we may tell ourselves.
Judge Byer asked how many in the audience are from jurisdictions that allow the detention of truant (status) youth. Most raised their hands.
Then she asked how many use detention in truancy cases. Only two raised their hands.
I was please to see that despite the overwhelming number of jurisdictions that permit detention of truants, most judges exercise self-restraint.
The empowerment I derived from this workshop lies not only in this fact as well as the content and delivery, but knowing that the NCJFCJ is exercising judicial leadership off the bench to publish best practices -- even if it may invite controversy!
Let’s face it -- we know that truancy is linked to later delinquency. A 20-year longitudinal study found that truant youth are eight times more likely to become delinquent than non-truant youth (Henry & Huizinga, 2005). Truancy is a serious issue and cannot be treated lightly -- it is a precursor to delinquency. Treating truancy is about preventing delinquency.
The rub is in the "how?" -- and detention is not the answer.
Those who believe that detention is effective obviously believe so on anecdotal evidence. It's surely not grounded in competent evidence -- that is, the kind of evidence judges are suppose to consider when making findings of fact in their courtroom. Why do some of us (judges) do so well in the courtroom drawing conclusions, but are horrible outside our domain of laws and decorum?
Do we perform better in the courtroom because we are trained to apply rules of evidence to sort out the truth when judging a case? We (judges) qualify experts and often rely on their expert opinions when grounded in sound scientific principles. So, how can a judge be so quick to dismiss research grounded in hard data and analyzed using social scientific principles as in the use of detention and status youth?
Maybe some don't know the research; or, that some lack the resources to treat and use detention as a default; or, that others simply find it more convenient to detain than to treat; or, could it be that some simply don't care? Maybe it’s a combination of all -- though I am convinced the latter group is the smallest minority. Most judges I have come to know in my 13 years on the bench truly care. It’s typically never a question of motive, but one of method.
So, what about methodology?
Detention facilities are intended to provide temporary holding for youth pending a hearing on a delinquent act and are deemed high risk of serious re-offending or not appearing in court. It is an interesting paradox how on one hand detention is designed for youth at high risk for serious re-offending on a delinquent act but on the other some judges use it for truants as a preventive means against delinquency.
Let’s see if this makes sense. Truant kids are not delinquent -- they have committed no crime. Truant kids are high risk to become delinquent. These facts are undeniable – even for those judges who believe in the use of detention. So how does locking up non-delinquent kids with serious high risk delinquent kids become preventative, especially if truant kids are already high risk to become delinquent? As some would say -- "This is not rocket science!"
Nonetheless, this is what the research says:
- Detention is not necessary for status offenders and other low-risk offenders (Austin, Johnson, and Weitzer, 2005);
- Is less effective than community-based detention alternatives and can cause lasting harm (Munson et al., 2008; Holman and Ziedenberg, 2007; National Juvenile Defender Center, 2006);
- Is associated with higher rates of recidivism than community-based alternatives and costs far more (Austin, Johnson, and Weitzer, 2005; Holman and Ziedenberg, 2007; Munson et al., 2008; Howell, 1995); and
- Does not improve, and may worsen, public safety (Holman and Ziedenberg, 2007).
Besides the fact that detention facilities are not exactly the best housing in America -- many are understaffed (Holman and Ziedenberg, 2007), "crowded and unsafe" (National Juvenile Defender Center, 2006:4), and the risk is great that status youth will develop more deviant attitudes and behaviors through exposure to other status offenders and to delinquent youth (Holman and Ziedenberg, 2007) -- Judge Byer offered a distressing observation in her presentation: Detention also violates the needs of status offenders!
Judge Byer stated that her court collects data on truant youth that come through her court and at least 60 percent have suffered trauma at the hands of neglect, abuse, or both -- and the research supports her data. Consider a study that reported the following:
"[y]outh who enter juvenile status offense systems are often in extreme conflict with their parents that cannot be resolved privately without some intervention. These are youth who often fall between the ‘cracks’ of two bureaucratic legal systems -- one designed to respond to maltreatment of young children and the other focused on youthful offenders who present a risk to society. They need protective interventions, and their families require non-coercive, family-focused approaches that may help deter future delinquency. Many have been abused or neglected; are dealing with domestic violence within their families; come from poor and violent neighborhoods; suffer from serious unmet mental health needs, learning disabilities, and emotional or behavioral problems; and lack adequate educational and career opportunities. These are teens and families at risk and in great need of assistance." (Kendall, 2007).
The bottom line -- why keep beating them up by throwing them in jail? Would we do that to a child in a dependency case? Would we do it to our own child? Assuming there are no resources, why use a default that hurts more than it helps?
I am thankful there are more who follow the research than not and, in time, with the leadership and fortitude of the NCJFCJ, there will be even more.