Barry Krisberg on Where Juvenile Justice Goes From Here Under a Trump Administration

Barry Krisberg’s nationally acclaimed research has earned him a high level of respect in juvenile justice circles. President of the National Council on Crime and Delinquency for many years, he is now a criminologist at the University of California, Berkeley.

He has been advocating for progressive reform since the late 1960s. Entrenched for many years in the political and human issues influencing juvenile justice and the welfare of the young people involved, Krisberg has developed an expansive understanding and distinct perspective.

Below is what Krisberg has to say about the waves of reform he’s seen in the past half-century — what’s worked and what hasn’t — where we stand now and the outlook for juvenile justice reform under Donald Trump’s presidency. His comments have been edited for length and clarity.

Sara Tiano: Can you give us an overview of the major trends and shifts you’ve seen over the years, and where we are now?

BK: When I first got into the field, this was very close to the creation of the [then] new federal juvenile justice act. So I saw the enactment of the Juvenile Justice and Delinquency Prevention Act, which meant removing status offenders from secure facilities, ending putting kids in [adult] jail and a significant federal investment in prevention.

Then in the 1980s, following the reforms in Massachusetts, kind of a national movement to close training schools. I spent a lot of time working in that jurisdiction in evaluation of the Massachusetts reforms. I did another study of the reforms in Utah. Essentially in the 1980s into the early ’90s, we saw a massive reduction in the number of kids in training schools. Forty states closed some training schools of some type. A couple didn’t, most notably California, but many states were moving toward a deinstitutionalization point of view.

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[Training schools were an early alternative to jailing juvenile offenders alongside adults, first instituted in the late 1800s. According to the Center for Juvenile and Criminal Justice, “For over 100 years, Massachusetts training schools employed random beatings, food deprivation, and extreme periods of isolation to control youth in their custody.” A pro-reform 1970s state Department of Youth Services, led by Dr. Jerome G. Miller, closed the training schools after reports of their abusive, inhumane conditions. This led to a shift toward deinstitutionalization and community-based intervention therapies.]

Then we ran back into the moral hysteria of the superpredator [in the 1990s]. That made a pretty dramatic change, because what was happening then was kind of a reversal of that decision [to deinstitutionalize]. There were laws designed to put more kids in adult facilities. There were talks about increasing incarceration and lengthening stays of those who would be incarcerated.

The superpredator hysteria led to substantial increases of youth in custody, particularly minority youth. That created a crisis in juvenile correctional facilities across the country because they were overcrowded and were deteriorating.

And so, civil rights lawyers were filing lawsuits, they were getting consent decrees across the board; also the federal government was doing its own independent investigations of some of these places. As a result of this response to the abuses, we had a new wave of deinstitutionalization, and I think that’s where we’re at now.

The number of kids in custody is down by about 40 percent from five years ago. In some cases, these reforms are remarkable in terms of the magnitude of what’s taken place. For example, in California we went from 10,000 kids in custody [around 1995], to today there’s about 600.

The race factor

ST: Did race appear to be a motivating factor in the reforms that were going on in the ’90s?

BK: Yes. I think there’s little question that what you had was a very dramatic increase in custody of black and brown kids. Actually, the previous reforms when we were deinstitutionalizing the first time were heavily focused on white kids. When we got progressive, we were taking white kids out of custody and making the racial disparity greater, but then when we got tough, almost 85 percent of the get tough policies fell on youth of color.

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ST: Do you still see that level of racial disparity in the policymaking today?

BK: I think it's definitely getting better. It's not where we would like it to be, but clearly there’ve been some improvements. Even though the disparity is still pretty substantial, when you bring about a dramatic and major reduction in the number of youth in custody, it’s going to have a positive effect. My view is that most of what the reforms have amounted to have been the direct response to litigation — first and foremost. We didn’t do it because peace and harmony. We did it because the courts were saying you've got to do it. And that’s very significant.

The other thing is, as a result of these reforms, it drove up the cost pretty dramatically. So you had this interesting thing going on: We were locking up fewer kids, and we were giving the kids who were locked up much higher levels of services than they got before: education, mental health services.

In California, back in the ’80s, even the ’90s, we talked about $35,000 per kid. Those numbers today are a quarter of a million per kid per year. Now again, part of it is that services are being delivered that weren’t there before. Then the other issue was economies of scale — you’re dividing by a lower number and so it’s driving up the cost as well.

But again, I think what we saw was a realization on the part of elected officials that they were going to have to do that, number one. And then secondly, that this was going to cost so much that people needed to think long and hard about how many kids they really needed to lock up. So I think we are now seeing a change in which judges are being a lot more selective. And a lot of the kids locked up in these facilities were parole and probation violators. A number of places made it much more difficult — or even made it impossible — to return a parole violator to a youth correctional facility. It certainly had a very positive effect.

Public opinion has changed

ST: Is providing wraparound services for a kid who is kept in their home more expensive or less expensive than having them locked up?

BK: I think what we see is that many places have gone toward intensive, home-based care. The most expensive wraparound services are maybe 10 percent of what it costs to lock a kid up. And you’re seeing communities much more willing to step up and do more for these kids.

And by and large, the public believes that treatment and rehabilitation is the way to go. That’s been a highly significant change. The public opinion polls are really clear on this.

The juvenile crime rate has gone down dramatically. That’s the biggest and most important trend in the last 20 years. The public is a lot less fearful. They’re willing to embrace more enlightened and evidence-based programs and I think there’s been a change in the judiciary.

At one point judges wanted to show how tough they were. Increasingly we’re seeing judges who are interested in what is now being called therapeutic justice. More drug treatment, alcohol treatment, mental health services for kids who need it, rather than just using incarceration. And there’s been a trend toward instituting restorative justice.

ST: What has been pushing public opinion to be more pro-therapeutic justice and pro-rehab and treatment?

BK: The public is just a lot less fearful. That’s a very important development. When I think about my career in this field, I always thought I was on the extreme end of pushing liberal reform.

Now we’re seeing establishment-elected officials and criminal justice people, who used to be the other side, are now joining forces and arguing for the same. When I was working at the federal level, we were talking about boot camp and making it easier to prosecute kids as adults. We were fighting groups like the American Legislative Exchange Committee that wanted to institute harsh and determinant sentencing for juveniles. We were going in an opposite direction.

What’s been fascinating recently has been the way in which conservatives are embracing the issues. Pat Robertson, a conservative, is saying on TV, ‘We shouldn’t be putting status offenders in jail. We shouldn’t be kicking kids out of school.’ And I thought, ‘Wow, if that’s coming from him, we’re in a whole different place.’

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I’m happy after years of fighting the good fight, we’re seeing things turn around. I’m dealing with much higher, tougher battles. I’m not talking about ‘Let’s get runaways out of jail,’ I’m talking about, ‘What do we do with serious and violent juvenile offenders that’s more enlightened?’ So, that’s a huge movement.

The Trump effect

ST: What effect do you foresee the Trump administration having on juvenile justice?

BK: Donald Trump in the campaign argued for tougher penalties, increased use of the death penalty, all the worst sort of criminal justice policies we can think of. It’s a little hard for me — given strong positions in the White House, an attorney general who’s a right-wing ideologue and Republican control of the Senate — to think that we’re going to see much in a positive direction.

At the federal level, based on what the president-elect said and what we know from his attorney general [Sen. Jeff Sessions, R-Ala.], I would suspect that privatization will rear its ugly head again. We’re going to see a big emphasis to privatize federal detention centers, prisons, you name it, although under the previous administration that looked like it was being phased out.

Given the apparent lack of interest of the Trump administration in science, evidence-based strategies will get less traction. The Department of Justice is currently [under the Obama administration] a major proponent of evidence-based programs. Without the stature of the DOJ, the local government criminal justice conversation will likely devolve to short-term fiscal concerns.

Almost all the reforms and proposals that were put forward by the attorney general — first Eric Holder and then Loretta Lynch — are likely to be reversed in this administration. I don’t see any interest whatsoever in pursuing of racial disparities either in law enforcement or in the corrections system. I think we’re moving into a nightmarish period in terms of the federal role in criminal justice. So that’s my bad news.

But despite Trump’s supposed love affair with police, I don’t think there’s going to be any investment in more police at a federal level. The driving dynamic at this point is that it is the public’s distrust and suspicion of government in many aspects — which to some extent fueled Trump’s campaign — is also a political force which argues against expansion of the criminal justice system, expansion of criminal laws or growing investments in more prisons and jails.

Overwhelmingly, the public thinks that the criminal justice system is bloated and corrupt. And that comes across in almost all the polls whether they’re state polls or national polls.

What remains to be seen is what kind of appointments and changes we’re going to see in the federal court that might also influence what’s going on. Clearly a Trump appointment to the Supreme Court is likely to continue the pattern when [Justice Antonin] Scalia was on the court. Should [Trump] get another appointment, things could get very bad very quickly.

One thing that is going to be extremely interesting in the next several years will be where the federal government comes out on the drug issue. Particularly marijuana. Because there’s a growing number of conservatives who are fine with legalizing marijuana. And then you have others like the attorney general [nominee] who wants to fight a war against marijuana. So I think we’re going have to watch that.

The choices states have

ST: Will some states take a defiant stance against the policies proposed by Trump and his leadership team?

BK: I think states that were already pursuing a smart-on-crime approach are going to continue in that direction. California, New York, Illinois, Michigan, most of the large, urban states are going to continue to pursue a kind of smart-on-crime strategy. And there’s not much the federal government can do about that; most of it is being funded through local resources anyway.

What I would anticipate under this administration is far less money flowing to the states and with almost with no restrictions. I think we’re going to see a return to the Reagan years: Give money to states and not really care how they’re going to spend it. And I think how the states spend it is going to be a very complicated and nuanced story, depending a lot on state politics, the level of overcrowding, state budget crises.

There is nothing on the horizon that suggests that the significant fiscal problems of states are going to change much. But the states, by and large, will not have any more money. I don’t see a lot of new investments in criminal justice at any level.

ST: Can you talk about the community shift to being more willing to step up and do more for the kids who are getting into trouble?

BK: What I’m seeing is first, more willingness on the part of the criminal justice people. To look at these programs and not see them as leniency, not see them as endangering public safety, and beginning to take seriously research suggesting that they’re really effective. In terms of communities, I think that we’re just not having the same level of Not In My Backyard that I’ve seen in earlier years.

Understanding of trauma

I think it is important that the public is more exposed through the media to ideas about trauma, post-traumatic stress, understanding that young people who grow up in really difficult situations, it doesn’t excuse their behavior, but it explains what’s going on. And that if somebody’s responding to a heavily traumatic situation, punishing them more isn’t going to do any good. I mean, we’re talking about trauma-informed therapy in schools, in probation, so people are beginning to understand and feel more comfortable about it.

And then the other part is the introduction into the public about this idea of neuroscience, of brain development — that adolescents aren’t fully formed and developed, so we need to take into consideration their vulnerabilities. For years I used to say, “Children are not little adults.” But so many of our policies just assumed that it didn’t matter.

And you’re starting to see this reflected in jurisprudence (the study of law). We’ve had a number of extremely progressive and enlightened court decisions. First, eliminating the death penalty for juveniles — I never thought that was going to happen in my lifetime, but the court said that was unconstitutional. Then it went on to life without the possibility of parole or extremely long sentences, and the court said we have serious questions and concerns about that. We’re even now willing to go back and look at somebody who 20 years ago got a life sentence without the possibility of parole and make a more contemporary assessment.

ST: Speaking of going back and reversing a decision, California’s recently passed Prop 57 (which allowed judges, not prosecutors, to decide which juveniles should be tried as adults) repealed Prop 21 (which automatically moved certain juvenile crimes into adult court, called direct file). What’s your perspective on that proposition and direct file?

BK: Direct file is bad law, generally, and there’s no evidence that it produces anything but arbitrary or discriminatory decisions. To me, the core issue is that we want decisions on serious juvenile offenders in a courtroom with evidence, with the youth represented, with a transcript.

To me, direct file has no relation to any basic American legal principles. It’s a terrible idea, and it’s only produced bad outcomes. We should not be deciding the fate of young people in some backroom office of a prosecutor by people who don’t have sufficient training or understanding to even know what they’re looking at.

And I think it’s well documented that direct file has adversely affected youth of color and there’s not a shred of evidence that it does any good in protecting the public. So it makes prosecutors feel macho is the best I can describe it. And it doesn’t serve any useful criminological purpose. It has an arbitrary, capricious nature: The fact that some counties never use it, some counties use it all the time. It’s used in a racially disparate way.

Now, I’m not saying that juvenile court transfer hearings are always perfect and always wonderful, but when you have a trained judge, when you have a young person represented by a competent attorney, when you have transcripts and records, and sort of customary rules of evidence, it makes more sense. You know, if my son or grandson was involved in a very serious crime, I certainly would not think that direct file would be helpful in any way.

ST: Do you believe in incarcerating youth at all?

BK: It should be the absolute, positive last resort. And it should be done only for the purposes of averting imminent danger, and should be done for the shortest possible time. There’s no evidence that incarceration helps anybody, heals anybody, prevents any crimes.

So I say yeah, in the world I would construct, yeah, there might be a period of time in which a young person so out of control, so violent, might have to be temporarily separated from society, but for the shortest possible interval. And we shouldn’t be under the illusion that we’re going fix them with this. If we’re going to use incarceration, we should look at what’s happening in Western Europe. If we’re going to use incarceration, let’s do it like they do it in Germany and Scandinavia, etc. Short, very humane, very treatment-oriented programming.

More prevention, access to lawyers needed

ST: What’s needed for juvenile justice policy to get closer to where you think it should be?

BK: There’s been a criminal lack of research on deinstitutionalization. We’re locking up far fewer kids, and we’re sending these kids by and large home, on probation, but we really don’t know how well they’re doing. And I’ve been battling for the last 10 years to say we need to find out how they’re doing. Because if they’re not doing well, which I suspect many of them are not, we need to figure out who are the kids who are not responding well, and we need to figure out how to help them.

To me, there’s a linkage between the young people we used to incarcerate and young people who are now in mental health facilities, or the young people who are on the streets homeless. These things are linked together and so you can’t just deal with this narrowly as a problem of closing the training schools. We should close them, but also, what has to be in place in communities in these situations: We’re a long way from dealing with that.

The other thing I would say, although I’m pretty optimistic about the direction we’re going in recent years, I still think we’re miles away from recognizing the importance and value of prevention services. I mean yes, we know there are certain generic programs that are good, but in terms of really targeting the most at-risk cases — kids who are being physically abused, kids who are in very precarious living situations, kids who are manifesting early signs of mental health problems, we still have almost nothing in place to help those kids. And it would be so much more cost-effective and reasonable to be intervening early with them than waiting until they really settle into very bad behavioral problems.

ST: Any moves on the horizon you’re especially hopeful for or got you particularly wary?

BK: California made a major restriction in terms of the use of solitary confinement. We had ended solitary confinement in state facilities, but the counties were still using it unregulated. So, this is a very good thing.

I’ve been spending a fair amount of time thinking and working on the issue of juveniles who are wrongly convicted of crimes. Which kind of morphs into the issue of juveniles who have grossly inadequate representation. If we want kids to get a fair shake, they’ve got to have access to lawyers.

And throughout most places in the country, and even most places in California, legal representation of juveniles is woefully inadequate. And we’re taking little positive steps in that direction, but I’ve been imagining even a statewide referendum, which ratchets up the statewide availability and quality of lawyers available for kids.

One of the things we found is that kids will even falsely confess because they’re kids and they feel pressure. It’s because of grossly inadequate legal representation.

I think that will be a very important area: to ensure the In re Gault decision (intended to ensure all children accused of a crime in juvenile court receive a lawyer) is alive and that there are lawyers available for these kids.