By Laura Cohen, Clinical Professor of Law and
Director, Criminal and Youth Justice Clinic,
Rutgers School of Law – Newark
Lost in his orange jumpsuit, Frankie sat across the table from me in the drab detention center conference room. Born with fetal alcohol syndrome, Frankie was a slight 15-year-old with significant learning and behavioral disabilities. Frankie had been arrested at numerous times for minor offenses, beginning when he was only 11. Most recently, he set off a fire alarm at school, which in turn activated the sprinkler system and caused a flood. Although Frankie had been placed on juvenile probation several times, he failed to comply with the rigid reporting conditions and continued to engage in illegal activity. His father, a hard-working Haitian immigrant, was at a loss; every school he attended ultimately suspended or expelled him, and the family did not have the means or the knowledge necessary to challenge these decisions. Finally, when Frankie was 14, the Juvenile Court committed him to the New Jersey State Training School at Jamesburg, where he served one year. He now was on the verge of being released, and I, along with my clinical law students, was desperately trying to avert the cycle of re-arrest, incarceration, and release that inevitably would follow. Because of his juvenile justice involvement, however, both the educational and mental health systems had thrown up barriers against him. We were determined to move these mountains, but recognized the enormity of the task.
Tragically, Frankie’s story is a common one. Children with disabilities are grossly over-represented in the juvenile justice system. One national study, which surveyed 52 state juvenile corrections agencies, determined that 33.4% of incarcerated youth have a diagnosed special education disability, compared to approximately 10% of the general population. Of this group, 47.7% have emotional disturbance, 38.6% have specific learning disabilities, and 9.7% have mental retardation. Strikingly, the same study posited that the actual prevalence of disabilities among children in custody is substantially higher, but that juvenile corrections officials under-identify special needs for fiscal and other reasons. In addition, according to the National Center for Mental Health and Juvenile Justice, approximately 70% of system-involved young people suffer from mental illness, with 25% of these deemed severe.
New Jersey mirrors the rest of the country. According to the Juvenile Justice Commission, which runs the State’s three secure youth facilities as well as a network of residential placements, roughly half of the nearly 500 children in custody on any given day are eligible for special education services. An even higher percentage is experiencing post-traumatic stress disorder, depression, bi-polar disorder, and other mental health conditions.
Like Frankie, these children are ill-served by incarceration. Although rehabilitation continues to be a primary goal of the juvenile court, young people often leave custody with more profound needs than they had when they entered. Individualized Education Programs (I.E.P.’s) are inadequate, inappropriate, or ignored, and unique opportunities for educational intervention (this is, after all, a captive audience of students) are lost. The primacy of corrections over treatment within the facilities results in punitive responses to misbehavior, including solitary confinement and use of restraints. These practices, in turn, can lead to or exacerbate already-existing mental illness. Some children become suicidal.
Similarly, facility administrators often react to acting-out or aggressive behaviors that may be manifestations of disabilities by filing new juvenile or criminal charges. Young people thus penetrate further into the system, rendering successful re-entry into the community difficult if not impossible. Children with disabilities, furthermore, frequently have difficulty complying with conditions of parole and probation, which require them to report in person to their supervising officers, phone in on specific days at particular times, attend school daily, and participate in “one size fits all” programs that are not necessarily consistent with their needs. In fact, roughly one-quarter of youth currently in custody were placed due to a technical violation of parole or probation rather than a new offense. It is little wonder that at least 55% of incarcerated youth are re-arrested with one year of their release from custody.
Mental health services are sorely lacking within youth prisons. In New Jersey, the JJC’s sole specialized residential facility for children with severe mental health needs was shuttered last year, and the only unit within a secure institution for this population of youth has been partially converted into a protective custody wing. As result, youth who need more intensive treatment are reluctant to seek it, for fear of being stigmatized. When children are in solitary confinement or held in some other “keep separate” status, furthermore, they are not permitted to participate in those programs that do exist, despite having engaged in behavior that reflects a greater, rather than lesser, need for treatment.
Exacerbating the situation in New Jersey is the lack of judicial control over or oversight of JJC facilities. If the Juvenile Court commits a child to JJC custody, the Juvenile Code does not expressly permit it to order the agency to provide any particular services or assistance to that child. Children are sentenced to multi-year terms of incarceration with no regularly-scheduled court reviews of their status. And, although they have a right to counsel during the pendency of their delinquency cases, that right ceases at the conclusion of court proceedings. As a result, with the exception of the small number of youth represented by the Rutgers legal clinics, children serve their entire terms without ever speaking to an advocate (and, often, without seeing their parents, since the secure facilities are inaccessible by public transportation). Consequently, educational deprivations, lack of therapeutic services, solitary confinement, and other harms continue unchecked.
How do Frankie, and others like him, free-fall into the juvenile justice system when their special needs were well-known to and documented by their schools and other child-serving agencies? To begin with, the juvenile court has become the default service provider for youth with mental illness and other disabilities. According to Thomas Grisso, Ph.D., one of the country’s leading researchers on mental health and juvenile justice, “During the 1990s, state after state experienced the collapse of public mental health services for children and adolescents and the closing of many—in some states, all—of their residential facilities for seriously disturbed youths, [and the] juvenile justice system soon became the primary referral for youths with mental disorders.” In fact, a 2004 report by the U.S. House of Representatives determined that two-thirds of juvenile detention centers across the country incarcerate youth who are waiting for community mental health treatment. In addition, the growing police presence and criminalization of wrongdoing in some schools has created a “school to prison pipeline” that disproportionately directs minority children and those with behavioral disabilities to the juvenile court.
Children who have behavioral challenges or struggle in school, furthermore, are more likely than other youth to be charged with “status offenses,” or conduct that is considered a legal violation solely due to the child’s minor status. Such conduct includes truancy, running away, disregard for parental authority, underage drinking, or any other behavior that poses a serious threat to the safety of the young person. In New Jersey, these cases initially are processed through the Juvenile-Family Crisis Intervention Units (JFCIU) in each county, which are mandated to attempt to divert them from court through the provision of services to the family. Ultimately, however, roughly 8% of youth referred to a JFCIU are committed to residential placement, generally either group homes or residential treatment centers. If a child in placement runs away or defies facility rules, he or she may face juvenile delinquency charges and, often, incarceration.
What can be done to prevent tragedies like Frankie’s? Obviously, we must increase the availability and scope of community-based mental health services and ensure that children are placed in appropriate, effective educational or treatment settings rather than in youth prisons. The school-to-prison pipeline must be dismantled, and specialized diversion programs implemented for children with disabilities. Juvenile court judges, prosecutors, probation officers, and defense attorneys must work more closely with mental health professionals to better understand the needs of children with disabilities and the impact of those disabilities on children’s trial competency, waiver of rights, ability to formulate intent, and other legal determinations. The Juvenile Code must be amended to permit judges to order the JJC and other child-serving agencies to provide specific services for children in placement, to require review hearings for children in custody at least twice a year, and to provide counsel for children throughout their terms of incarceration. Large institutions like Jamesburg should be closed and replaced by smaller, community-based facilities that offer individualized care and treatment. The use of solitary confinement for disciplinary purposes must be banned. Finally, special education programs and mental health treatment in juvenile justice facilities must be compelled to meet the individual needs of every child, consistent with IDEA, Section 504, and the A.D.A. We can afford to do no less.
1. N.J.S.A. § 2A:4A-43
2. U.S. House of Representatives, “Incarceration of Youth Who Are Waiting for Community Mental Health Treatment in the United States” (2004).
3. Office of Juvenile Justice and Delinquency Prevention, Deinstitutionalization of Status Offenders Best Practices Database, available at www.ojjdp.gov/dso/new%20Jersey%20%Juvenile%20Family%20Crisis%20Intervention%20Units%20(JFCIU)-DSOProgramDetail-784.aspx
