As a lawyer who practiced in the juvenile system early in my career, when I think about the approaching anniversary of In re Gault, I feel the need to stop and reflect. Where did we go wrong? And Why? For those less familiar, In re Gault was the seminal youth justice case that set the stage for due process for young people accused of delinquent acts. In the nearly 50 years since, although some progress has been made, as a whole, we are still failing to identify how best to intervene when young people violate the law, and we have not adopted the best mechanisms for providing developmentally appropriate course correction.
While it is generally acknowledged that young people should be treated differently from adults in the justice system (even the sole dissenting Supreme Court Justice in the Gault case agreed that the purpose of juvenile court is correction, and not punishment), what that looks like often defies logic when we consider the results. In many jurisdictions across the country, kids can be questioned without their parents or legal guardian, without a lawyer, and without constitutional rights being read. They can appear in front of a judge without legal representation, and someone else can waive their right to counsel. They can be confined for offenses that would not amount to crimes if they were adults, shackled, held in solitary confinement, and kept away from their homes and families for many years. Sadly, the outcomes for such treatment is usually poor – bad for the kids and bad for the community.
Kids who are treated as if they are criminals as opposed to young people who have acted impulsively or had a lapse in judgment, often get pushed further off track instead of being guided onto a better path. When they are detained for low-risk behavior and locked up (even if just for a night) they run the risk of being exposed to youth who are involved in much riskier behavior and are more likely to be a bad influence than a good one. When young people are placed in restraints, dressed in prison-like clothing, forced to sleep behind bars or in a cell, and denied appropriate education, the likelihood of them growing out of their normal adolescent misbehavior gets slimmer. Frequently, youth who are exposed to harsh punitive environments have the opposite result – they develop a propensity for risker and more anti-social activities than before, and often return home worse than when they were placed. It defies reason to continue this practice, and yet it is common in many juvenile systems across the country.
In Gault, fifteen year old Gerald Gault was charged with making a prank offensive telephone call along with his friend (a misdemeanor). When he showed up in court, he was not provided a lawyer, the accuser did not have to testify, and Gerald was placed in the state juvenile correctional institution until he turned 21! The Supreme Court found the matter to be an unconstitutional violation of his right to counsel. Unaddressed was the harshness of the disposition – 7 years for a prank call!
Today, advancements have reduced juvenile detention and improved due process, but as a whole, we still lack effective responses to address and deter escalating delinquent behavior. A number of studies on the adolescent brain point to the need for more creative responses based on what is happening physiologically in a young person’s brain, and yet we still lock up too many kids for teenage acting out. Recent reports by the Office of Juvenile Justice Delinquency Prevention (OJJDP) indicate that 60% of the youth currently in juvenile institutions are there for non-violent acts. Science is telling us to do something different, but systems are slow to change.
The standard for juvenile interventions should be to focus on outcomes while holding a youth accountable. Incentivizing positive behavior is more impactful than negative sanctions for bad acts. Restorative practices instill empathy better than suspension or expulsion. Teaching coping skills and conflict resolution works better than handcuffs and locked cells. If we want safer communities, we must elevate the standard for juvenile systems to appropriately and effectively respond to youth risk and need. This means that all systems that work with young people should enhance ways to hold youth accountable by instructing, coaching and redirecting.
We know much more in the 50 years since In re Gault, which means we CAN and SHOULD do better!
Tanya Washington is a former civil rights attorney and social justice advocate who seeks better outcomes for vulnerable youth/ Share your thoughts at http://www.justicecorner.com