The juvenile justice system as originally conceived was based on the idea that young people who came into conflict with the law should be given the opportunity for reflection and reform. The earliest places of juvenile confinement were intended to rehabilitate young people, and help them become productive members of society.
Over time, particularly in the 1990s, juvenile justice came to focus more on retribution and punishment. Kids were placed out of home for longer periods in increasingly restrictive settings, and catch phrases like: “Do an adult crime, serve adult time” became the norm among policymakers who wanted to be responsive to communities fearful of these new young so-called “superpredators.”
What the public discourse at that time — and hence public policy — failed to appreciate was the likelihood that young people in the juvenile justice system are more likely to be victims of violence than perpetrators of it. Many of them, we came to learn, have had multiple adverse childhood experiences (ACEs), or have experienced significant trauma.
More than half who come into contact with the system have a diagnosable mental health disorder. Within that group, approximately 60 percent will have a co-occurring substance use disorder. It is now no longer up for debate whether we should treat young people with mental illness, trauma or behavioral health issues as though they are simply unwilling to conform to socially and legally prescribed norms. What is up for debate is how to appropriately address youth with these issues who may also have committed a delinquent offense.
The National Center for Mental Health and Juvenile Justice (NCMHJJ) is dedicated to answering this question and has sought to provide information and technical assistance to the field for 15-plus years. According to its publication “Better Solutions for Youth with Mental Health in the Juvenile Justice System,” the goal for youth who come into contact with the system should be threefold.
First, when “safe and appropriate,” we should keep young people with mental health needs out of the realm of juvenile justice altogether. While there is an effort around the country to recalibrate juvenile justice so that it is not purely about punishment and incapacitation, we aren’t there yet.
Most juvenile detention facilities and out-of-home placements are still not conducive to treatment of kids with trauma, and those with mental and behavioral health needs. Some facilities around the country that purport to offer treatment do more harm than good. Keeping young people in the community whenever possible, and connecting them — and their families — with services is a best practice that is, thankfully, finally beginning to take hold around the country.
Second, for kids who do enter the system, referrals to community-based services should still be an option. This would require juvenile justice stakeholders to be equipped — through training and other means — to identify those young people for whom delinquency may be a symptom, rather than the problem. One frequent example of this is when young people are referred to juvenile court from schools for disruptive or noncompliant behaviors that may be a direct byproduct of trauma, or a mental or behavioral health need.
In Philadelphia, the Defender Association, through Stoneleigh Emerging Leader Fellow Kate Vengraitis, is seeking to further incorporate special education advocacy into their juvenile representation practice. By educating juvenile defenders about the accommodations that their clients may be entitled to, Vengraitis hopes to ensure that children are not inappropriately punished for behaviors that may be a result of a “qualifying disability” that could include trauma, or a mental or behavioral health need.
Finally, NCMHJJ’s report recognizes that which we all know to be true: Some young people with trauma or mental or behavioral health needs cannot safely remain in the community because they may be a danger to themselves or others. This is by far the minority; and for even these youth, access to services while in placement is essential. Most, even those charged with serious offenses, will eventually return to their families and communities. If those young people need services, and receive them while confined, systems should ensure continuity of care once they are released.
In Philadelphia, where the Stoneleigh Foundation sits, the local government structure offers an opportunity for recognition of the connectedness between a need for services and juvenile justice involvement. The Division of Juvenile Justice Services sits within the Department of Human Services. This provides the impetus for all child- and family-serving agencies to break down silos and coordinate the provision of services to families and all youth in out-of-home placement.
In theory, with this structure a single agency can act as the locus of control — or coordinator — over the array of services provided to a child, especially where juvenile justice is concerned. Though this benefit has still not been fully realized in Philadelphia, it offers a rare opportunity for connectedness, coordination and continuity of the care provided to all system-involved youth.
In jurisdictions that do not have this benefit, systems must be more intentional about connecting all the essential partners to address mental and behavioral health in juvenile justice. Identifying those partners can be accomplished by reference to NCMHJJ’s three-pronged goal.
- To keep young people with mental and behavioral health needs out of the system, which should figure out what its “feeders” are: Is the school district making large numbers of referrals of young people with these needs? Are there runaways or youth experiencing homelessness being picked up by law enforcement? Those agencies, at a minimum, should be engaged.
- To identify kids in the system who may need mental and behavioral health services, determine whether your system has the know-how to make those assessments: Are staff at relevant contact points adequately trained to recognize these young people? Once identified, are there policies and practices in place that ensure young people are treated appropriately? Is there an effective referral pipeline to service providers who can provide that treatment? The essential partners to meet this goal may be community-based providers or agencies that operate in, or are accessible to, the communities where young people and their families live.
- To serve kids who are in the deeper end of the system, the facilities where kids are housed, many of which are contractors to (and not operated by) the public system, need to have the capacity to provide mental and behavioral health services verified. What are their modes of custody and control? What are their disciplinary policies? How do they accommodate young people with mental and behavioral health needs? How do they provide treatment? What treatment do they provide, and what are their responsibilities for positive outcomes? What planning and coordination do they do to prepare youth for reentry?
All these questions will be answered differently depending on the jurisdiction of the juvenile justice system and may require intensive work on the part of stakeholders. The overarching goal and the ultimate outcome of this effort will be one we should all support.
My friend Judge Joan Byer retired from the Jefferson County, Kentucky juvenile bench where she implemented a groundbreaking diversion strategy that engaged multiple systems and the families of youth to solve problems and create access to services. She described the overarching goal this way: “We need to move closer toward a juvenile justice system that stops punishing kids who have had punishing lives.”
Marie N. Williams, J.D., is senior program officer at the Stoneleigh Foundation.Before that she was immediate past executive director of the Coalition for Juvenile Justice and a longtime advocate for social justice causes.