Out of destruction can come rebirth.
Like the phoenix, a mystical bird of Greek mythology that rises from the ashes of its predecessor, we are experiencing today a rebirth of a once promising trend in juvenile justice I refer to as deconstruction, which goes well beyond what we commonly call deinstitutionalization.
Deinstitutionalization is the process of identifying which youth shouldn't be incarcerated, and assumes that prisons for youth are a necessity, though maybe fewer are needed. Deconstruction is the process of shuttering all youth prisons as we know them today. It assumes that most kids don’t require secure confinement and that the few who do should be housed in smaller secure residential housing inside the communities where their families are located.
We are most familiar with the term deinstitutionalization because it is one of the four core protections of the Juvenile Justice Delinquency Prevention Act (JJDPA), called the Deinstitutionalization of Status Offenders (commonly referred to as the DSO protection). Its intended purpose is to eliminate incarceration of youth whose conduct would not be criminal if they were adults, such as unruly and truant behavior.
Unfortunately, this intended purpose is gutted by the Valid Court Order exception (VCO), which allows courts to incarcerate status youth who violate a condition of their supervision. In other words, they can be treated as if they were delinquent, though they’re not.
Despite this legal incongruence allowing states to lock up status youth, statewide reforms over the past decade have shunned the VCO exception and refused to treat the kids who make us mad as if they are criminals. By 2014, 28 states and territories reported zero use of the VCO. This year Utah joined these ranks after overhauling their juvenile justice system and the Tennessee Juvenile Justice Task Force is recommending the same.
And I believe more will follow suit in the years to come. Why?
Irritating kids aren’t criminals
Because more people are paying attention to the evidence that youth who spend time in secure custody are less likely to complete high school, avoid rearrest, find employment and form stable families. They are also more likely to abuse drugs and alcohol. Furthermore, youth of color continue to be disproportionately impacted by the juvenile justice system, including at the detention stage.
And these same people have come to their (common) senses and figured out that status youth aren't criminals, but the VCO exception treats them like criminals, which transforms them into criminals.
Status offenders don’t scare us, they make us mad. More policymakers are embracing the research and asking the rhetorical question, “When did making adults mad become a crime?”
The absurdity of the VCO exception becomes apparent to those who can grasp the concept that using detention to safeguard youth facilitates exposing them to greater risks. That may cause their behavior to deteriorate, sometimes causing a greater threat to themselves or others.
Status offenders are a conundrum for judges because the choices are conflicting. No matter what we do, there is a risk of harm. If we don’t detain, we risk the youth running away again and into the arms of the pimp or other adult exploiter. But if we detain, it is us who send the youth into the arms of delinquent youth already housed in the detention centers. That results in status youth assimilating delinquent behavior after their release.
When the latter becomes our choice, the kids who made us mad and who at worst present only harm to themselves are now a risk to harm others.
The lesser of two evils
In my baby years of judging, I too often gave in to parents who demanded that I lock up their unruly child to “teach them a lesson.” I would implore them to think twice and explain the criminogenic effects of the detention center. Some would relent, many others didn’t.
When I saw these kids later on delinquent matters, their parents regretted asking me to detain them, saying, “Judge, when my son was released, he started getting phone calls from the kids he met in jail, and he started running with them on the streets.”
It is the classic lesser of two evils dilemma.
Do we resist the temptation to detain knowing the youth will run into the night, or do we give in to our protective instincts and lock ’em up knowing the detention centers are the best training grounds for delinquency?
When we detain a kid for their own protection so he or she will not run away, we do so with disregard for the protection of others who one day will cross paths with the kid we introduced to delinquents, only to become a delinquent.
How sad is it to act out of our protective instinct but see harm to others resulting.
No matter how difficult the choice, we must guard against doing anything that will make matters worse, even when it feels contrary to our protective instincts. When we as judges fail to guard against this, we may end up contributing to juvenile delinquency and future offending, rather than preventing it.
This concept of deinstitutionalization of status offenders has carried over into our treatment of delinquent youth, but in a different form. Beginning with the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative (JDAI), hundreds of systems across the nation have reduced unnecessary detention of youth, especially youth of color who are disproportionately represented in our detention facilities.
Incremental reforms increasing
The research is informing us now that incarceration is harmful even for those kids who commit crimes, and that we must use validated risk assessment tools to help systems determine which kids present a lesser risk to reoffend, and should not be detained.
In the past decade a number of states have reformed their juvenile justice systems and mandated the use of risk assessments at both the front end of the system (i.e. who should not be detained upon arrest) as well as the back end (i.e. who should not be incarcerated at disposition).
So it goes without saying that a process that reduces the incarceration of youth (i.e. deinstitutionalization) inevitably can lead to the closing of some prisons (i.e. deconstruction). For example, when Georgia mandated its risk assessment systems and limited judicial discretion by prohibiting the incarceration of low-risk youth, two prisons on line for construction were removed from the budget, and two were closed later.
This incremental approach (i.e. one prison at a time) to deconstruction has been the preferred choice of policymakers because elected officials are concerned about political fallout caused by the appearance of a massive deconstruction of prisons. Or even the downsizing and redeployment of smaller facilities spread throughout the state for the convenience of families and to facilitate effective treatment, which demands family involvement if treatment is to be successful inside a facility.
I confess that I am an absolutist when it comes to deconstruction, one who supports the wholesale destruction of youth prisons in exchange for much smaller secure residential-like facilities inside the communities from which the kid was removed. I also believe that notwithstanding the considerable strides made to reform our juvenile justice systems to reduce the incarceration of kids, there is still much more we can do to reduce those numbers even more.
When Jerome Miller introduced deconstruction in the early ’70s by shuttering the training schools in Massachusetts, well before evidence-informed programs were identified, it shocked the juvenile justice world. It was viewed by many as reckless, but listening to Miller describe how he came to this decision lent credibility to the notion that the only way to fix a reckless situation is by making what looks like a reckless fix.
He told us that the training schools were so abusive they were not reformable and shuttering them was the only option. In other words, how could sending these kids back home be any less safe than exposing them to the violence and abuse inside youth prisons?
They were all going to get out some day, and most, if not all, were going to be more dangerous than when they first entered prison.
Miller also confronted the lesser of two evils dilemma, but unlike those judges who act on their protective instincts to incarcerate status youth, Miller acted on his protective instincts to deincarcerate.
And in so doing, he not only saved those kids from further abuses, he also saved communities from the violent monsters those kids would have become. The subsequent studies of those kids released from prison proved that the shuttering of prisons was the lesser of two evils.
I think it’s time to raise the phoenix of deconstruction from its ashes.
Steven Teske is chief judge of the Juvenile Court of Clayton County, Ga., and vice chairman of the Governor's Office For Children and Families. He is a past president of the Council of Juvenile Court Judges and has been appointed by the governor to the Children & Youth Coordinating Council, DJJ Judicial Advisory Council, Commission on Family Violence, and the Governor's Office for Children and Families.