Solitary confinement of juveniles should be banned, and children should be exempt from sex offender registry requirements, according to the John D. and Catherine T. MacArthur Foundation.
The influential, Chicago-based philanthropy behind the ambitious “Models for Change” juvenile justice reform effort also called for sharp restrictions on prosecution of youths in the adult criminal justice system and strengthening of the confidentiality of juvenile records.
The recommendations are in a new report, “Because Kids are Different: Five Opportunities for Reforming the Juvenile Justice System.”
Marcy Mistrett, chief executive officer of the nonprofit, Washington-based Campaign for Youth Justice, said in an interview that juveniles should never be prosecuted in adult court.
“I think the biggest thing is kids really are malleable and have the ability to change, so they should be in places where they have access to rehabilitative services, which they do not do in the criminal court,” she said. “Kids deserve a second chance and deserve a chance at rehabilitation.”
The report cites research on adolescent brain development, recent U.S. Supreme Court decisions and a wide array of evidence that the current juvenile justice system is broken to bolster the argument that juveniles suspected of offenses should be treated differently than adults.
Adolescents are more susceptible than adults to peer pressure, risk-taking and behavior like alcohol and drug use; more likely to seek immediate gratification; and less likely to weigh long-term consequences of their behavior, according to research the report cites.
Youths are also more amenable to change and rehabilitation than adults, and most youths outgrow delinquent behavior, the report says.
“‘Holding youth accountable’ is often simplified to involve only punishment — formal court processing with harsh consequences or incarceration for even minor offenses, despite more and more studies confirming the ineffectiveness of these approaches,” the report stated.
“Too few juvenile justice systems use approaches that teach youth about the consequences of their wrongdoing in a holistic way, or give youth opportunities to restore damage they have caused, when feasible, and the tools to learn from their mistakes and make better choices in the future.”
Current practices relying on “intensive oversight and placement of youths in large prison-like facilities” has only a “modest” effect on recidivism or increases recidivism, the report says, while therapeutic programs focused on youth development have positive effects, even for youth who have committed serious offenses.
Institutional placement is also extraordinarily costly: A recent study by the nonprofit, Washington-based Justice Policy Institute found the average annual cost of institutional placement of one youth was nearly $149,000.
The MacArthur report cites several areas in which “current practice is fundamentally incompatible with healthy adolescent development.” They include:
Prosecution of juveniles in the adult criminal justice system
“Sending youth under 18 to the adult criminal justice system is one of the most egregious ways that juvenile justice system policy runs contrary to principles of adolescent development,” the report says.
The goals of the adult system are more retributive and punitive, while those of the juvenile justice system are ostensibly rehabilitative. Youths in adult courts face the same sentences, including mandatory minimum prison terms, as adults even though scientific evidence shows youths are less culpable. And adult prisons expose youths to adults with long criminal histories without providing programming that meets the youths’ “developmental needs.”
Public sentiment also favors keeping youth in the juvenile system instead of transferring them to the adult system, the report said.
The report recommended:
- Transfer of youths to the adult system should never be automatic, and judges, not prosecutors, should decide when it’s appropriate to transfer a case.
- Adult sentencing standards, including life without parole, should never be applied to juveniles.
- Adolescents should not be placed in adult jails or prisons. Holding them with adults can actually make youths more likely to commit new crimes.
- If youth are placed in adult facilities, provisions of the Prison Rape Elimination Act (PREA) should be strictly enforced: Youths under 18 should not be housed with the adult population; adult facilities must maintain separation between adults and youths; and youths must not be subjected to isolation as a way to comply with PREA.
The report says solitary confinement — often for 22 to 23 hours a day and sometimes for weeks or months a time — can be “profoundly damaging to youth.” It can cause psychological harm, worsen existing mental health problems and has been linked to suicide attempts or ideation, hallucinations, depression, anxiety, insomnia and uncontrollable rage or anger.
Solitary impedes youths’ social and physical development, depriving them of contact with loved ones, exercise, adequate nutrition and rehabilitative programming, and juveniles in solitary often receive no educational services or access to teachers, the report says.
In the context of adolescent brain development, solitary is particularly harmful, and the traumatic experience of isolation can hamper a youth’s ability to be rehabilitated and to mature.
Many states have regulations that are supposed to limit solitary. “But,” the report said, “monitoring of actual practices has revealed arbitrary and excessive use.”
Some states have moved away from solitary through the use of smaller, “home-like facilities, well-trained staff and developmentally appropriate programming, and an emphasis on positive reinforcement,” the report says.
The report recommended that the federal Juvenile Justice and Delinquency Prevention Act prohibit solitary confinement of youths under 18 and that sanctions be imposed on states if they try to use solitary to comply with the JJDPA and PREA regulations forbidding housing youths with adults. State and local laws should ban solitary for youths under 18, the report said.
Confidentiality of juvenile records
Talk about “collateral damage” stemming from a juvenile record:
“A juvenile record can have profound consequences, leading to barriers to employment, restrictions on access to housing and public benefits, restrictions on joining the military, placement on registries, difficulty pursuing higher education, and the stigma of being a ‘delinquent,’” the report notes.
The first juvenile courts, dating back more than a century, deemed it essential to keep youths’ records confidential as part of the rehabilitative role, reasoning that the stigma of a conviction could reduce a child’s ability to succeed.
Today, however, most states don’t keep juvenile records confidential. On the contrary, the report says, these states have laws requiring adjudication records to be disclosed to law enforcement, schools, potential employers, landlords, government agencies, researchers, the media or the general public.
Nearly two-thirds of states have processes for sealing records from public view or expunging them. But in many states, expungement is hard to get.
Allowing juvenile records to be public flies in the face of the system’s rehabilitative goal and evidence that most children age out of adolescent offending, the report said. And research shows making such records available is not linked to community safety, an assumption used to justify disclosure.
The report urges that law enforcement and court records for juveniles always remain confidential.
If the records are disclosed, the report says, they should be eligible for sealing or expungement quickly and easily once cases are closed.
Registries for youth who commit sex offenses
The federal Sex Offender Registration and Notification Act (SORNA) includes mandates for all states regarding registries, including registration of children adjudicated in juvenile court for sex offenses.
Critics call the sex offender requirements for juveniles draconian. Among offenses that can land youths on a sex offender registry: indecent exposure, public urination, streaking and possession of child pornography (an offense that can result from “sexting”).
SORNA stipulates that juveniles be placed on the registries based solely on offenses, without assessing risk based on the specific circumstances of a case.
However, Pennsylvania’s highest court, upholding a lower court decision, ruled Dec. 29 that lifetime registration for juveniles under SORNA is unconstitutional.
The state Supreme Court held that SORNA’s registration requirements violate juvenile offenders’ due process rights by relying on the presumption that all juvenile offenders “pose a high risk of committing additional sexual offenses.”
In the appeals court decision, Justice Max Baer wrote: “While adult sexual offenders have a high likelihood of reoffense, juvenile sexual offenders exhibit low levels of recidivism. … Many of those who commit sexual offenses as juveniles do so as a result of impulsivity and sexual curiosity. The vast majority of youth are unlikely to recidivate.”
In a statement, the nonprofit, Philadelphia-based Juvenile Law Center said: “This important ruling marks a major victory for children of the Commonwealth.”
Attorneys from the center had argued against SORNA before the appeals court.
The MacArthur report agrees: “Youths who commit sex offenses are very different than adult sexual predators: Sexual misconduct by children and teens is less aggressive, tends to be more experimental, and occurs over shorter periods of time.”
The report also cites research showing youths who commit sex offenses are unlikely to commit another in the future.
Being on a sex offender registry, the report says, can lead to stigmatization, alienation and isolation at a time when a youth needs the support of healthy relationships; harassment and attacks in their homes and schools; limitations on where they can live, and difficulty finding employment.
“Any one of these effects of registration could cause lasting damage to a vulnerable and developing adolescent,” the report says. “Taken as a whole, the effects can be devastating.”
Youths also can face fines or imprisonment for failure to comply with registry requirements.
The report recommends all youth under 18 be exempt from registration requirements, but says if they are required to register that it’s not for “normative adolescent behavior”; the circumstances of individual cases should be evaluated; registration periods should be brief; registry information should be kept private except for law enforcement purposes; and youths should not be required to register with schools or employers.