Time to end the incarceration of low-level youth offenders

The Prison Policy Initiative recently issued a report finding that status offenses and technical violations lead to the incarceration of more than 5,000 young people nationwide.

A status offense is a noncriminal act that is considered a violation of the law only because of the youthful age of the perpetrator. For example, a minor would face sanctions for drinking a beer or smoking a cigarette, even though an adult can freely engage in these activities. Technical violations arise when a youth, who has already been placed on juvenile probation, does not complete conditions of probation, like regular school attendance.

For those young people already touched by the juvenile justice system, the number of potential technical violations increases due to the use of valid court orders (VCOs) — mandated conditions of probation ordered by a juvenile court judge. If a 16-year-old commits the “crime” of truancy, for example, a juvenile court judge could order that youth, as a condition of his probation, to regularly attend school. The added VCO — required regular school attendance — heightens the consequences of continuing to miss class, since doing so would now violate a specific term of probation. Violating probation could lead to time in a detention facility.

The VCO is overused by judges, is detrimental to youth, and is counterproductive to the original goals of juvenile delinquency law. It would be beneficial to our youth, to our community and to our economy to minimize youthful detention for status-based offenses and instead implement community-based alternatives.

VCOs exist as an exception to the Juvenile Justice Delinquency and Prevention Act. The federal government passed the the act in 1974 to protect youths who are found guilty of status offenses from being detained. However, about 10 years later, Congress amended it to allow judges to require youths to comply with specific instructions issued in a court order. If a youth fails to comply with these instructions, he or she is detained. These instructions can include what would otherwise be classified as status offenses.

In the 30 states where the VCO exception is used, typically only a limited number of judges take advantage of it. Yet each year the VCO exception plays a part in the detention of thousands of young people. Confining youths who violate status-based conditions does not address the root causes of their behaviors, nor does it improve public safety. In fact, not only are detained youths more likely to offend later in life, but the experience of being in court and incarcerated increases their likelihood of engaging in future criminal activity.

The goal of juvenile justice departments should be to ensure youths do not reoffend. Juvenile probation officers and juvenile court judges should therefore be in the business of behavior change, not increased punishment.

When judges choose to detain youths for violations of status-based offenses, they curtail the use of alternatives to incarceration that are more effective in changing behavior. Community-based alternatives, for instance, have been increasingly effective and cost-efficient in treating youth.

Community-based alternatives provide a range of services and support to young people and their families, with the goal of addressing the underlying stressors for youth. Oftentimes they involve the use of tailored education methods, focusing on learning that leads to employment. For example, if a young person has been charged with truancy, a discussion of both the importance of school attendance as well as additional dialogue about vocational and technical career opportunities could reignite the child’s interest in education.

Right now, approximately 75 percent of youths in detention are held for nonviolent charges and status offenses. Yet by providing a tailored recovery and re-entry plan for each juvenile, states like Kansas have successfully decreased youth incarceration rates.

Juvenile justice systems should focus on ending the detention of youths for status-based offenses once and for all. Indeed, the original intent of the Juvenile Justice act was to keep children out of detention for status offenses, but use of the VCO exception has maintained the authority of a judge to do just that. Juvenile court judges should not only limit their use of the VCO exception, they should also promote engagement with community-based programs as a better alternative to incarceration.

Jesse Kelley is the state affairs manager for criminal justice at the R Street Institute. The publication of this article was supported by a grant from the R Street Institute. She wrote this for InsideSources.com.