OP-ED: Lions, Tigers, and Runaways – Oh My!

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Shawn Marsh

Toward Changing the Status of Children Charged with Status Offenses

When it comes to inflation and trains, being on “runaway” status presents a major risk for disaster. The same is true for runaway children who come to the attention of juvenile and family courts.

There is little doubt runaways are some of the most vexing cases judges face – particularly when the child is chronically engaged in this behavior, is resistant to intervention and presents at least some risk of harm to themselves or others. Historically, some courts have rationalized the use of detention in these cases as a means to teach the child a lesson, or because there are no other readily identifiable intervention options.

Although use of detention in status offense cases is discouraged by the Juvenile Justice and Delinquency Prevention Act (JJDPA), the existence of the valid court order exception (VCOE) is an avenue by which judges have used detention to sanction children for age-based offenses. In practice, the VCOE allows judges to detain children for violating a court order (e.g., the child must attend treatment) instead of the actual and original behavior that brought the child before the court (e.g., the child ran away from home). In recent years, however, this practice has been a topic of debate within judicial circles and has received increasing criticism from outside experts and agencies interested in juvenile justice system reform. Federal legislation has also been introduced that would eliminate the usage of the VCOE.

These important discussions began in response to our improved understanding of brain development in children, and research that elucidates the negative outcomes for low-risk children who are detained with high-risk children (i.e., deviancy training). Because of this understanding and these discussions, there have been changes in policy and practice at several levels. For example, the current fund of knowledge about brain development and consequences of aggregate care ultimately led the National Council of Juvenile Court Judges (NCJFCJ) to reverse its more than 30-year support of the VCOE and to pass a resolution in 2010 supporting a phased elimination of the VCOE with the next reauthorization of the JJDPA.

Although the JJDPA is still pending reauthorization, a cadre of judges across the nation has embraced the notion that detention should not be used with low-risk offenders, and have actively avoided use of the VCOE in status offense cases. Often these judges have sought involvement in efforts such as Annie E. Casey’s Juvenile Detention Alternative Initiative, or worked with the NCJFCJ to form judicially led collaborations in their jurisdictions to identify and implement alternatives to detention. Efforts such as these are notable, and have led to fundamental policy and practice changes in many jurisdictions that safely reduced the use of detention with status offenders as well as reducing the use of detention overall.

Nonetheless, despite ongoing judicial education and technical assistance offered by the NCJFCJ and others on this issue, many jurisdictions still struggle with how to handle status offenders without using detention – particularly in cases involving chronic or risky behaviors such as running away. This struggle seems to be related to system professionals: (a) misunderstanding or dismissing the research about the negative effects associated with mixing low-risk and high-risk offenders; (b) holding strong beliefs that detention serves as a meaningful deterrent or that detention as punishment is an effective intervention for changing children’s behavior; and/or (c) perceiving that there are limited or no resources available other than detention to handle or ensure service provision in these types of cases.

Fortunately, with the Coalition for Juvenile Justice’s publication of the “National Standards of Care for Youth Charged with Status Offenses,” there is now a comprehensive tool for helping courts that are struggling with the complex issues status offenders often present. These “Standards,” developed through a rigorous process involving juvenile justice experts that included juvenile and family court judges, clearly outline the rationale for not using detention in status offense cases, frame concrete principles for responding to status offenses and offer meaningful strategies for eliminating the use of detention in these cases at both the practice and policy levels.

For resources such as this to be effective, one must first be aware this tool exists, and then must use the tool with focused and active collaboration with change agents in the court, allied systems and community. To that end, the NCJFCJ stands ready to help support dissemination of the “Standards” and its subsequent implementation across the nation. There is no doubt there will remain challenges in working to fully de-institutionalize status offenders, but continuing efforts to achieve this goal are critical to reforming our juvenile justice system to best serve children, families, victims and communities.

Read an information fact sheet here

Shawn C. Marsh, Ph.D., is the chief program officer of juvenile law for the National Council of Juvenile and Family Court Judges

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