Juvenile detention: Harmful effects and strategies for change

Issue Vol. 10 No. 1 January 2008 By Gloria Tan

The Problem
Many children are inappropriately detained in the juvenile justice system, with deleterious effects on their development, mental health, and legal outcomes. A number of promising initiatives focus on addressing the current tendency to detain juveniles inappropriately and unnecessarily, but further efforts should be made to educate advocates, judges, and even parents, who can all intervene to prevent this harm from occurring.

Children charged with minor offenses comprise the largest number of children detained on pretrial matters in the Department of Youth Services (DYS). In 2006, 53 percent of all youth detained in Massachusetts were held for non-violent offenses, and 45 percent detained in 2006 were held on misdemeanor charges. According to DYS statistics from January through August 2007, the majority of children detained were charged with low-level offenses, such as disorderly conduct and domestic assault and battery.

DYS census statistics from Nov. 1, 2007, show that 79 percent of the children detained on bail status fell into one or more of the following categories: aged 14 years or younger, held on low level offenses, held on bail amounts less than $100, held on probation violations, or held awaiting DSS placements or §68A court clinic evaluations. A number of children detained in DYS are held on probation violations or on allegations that they violated pretrial conditions of release. According to DYS statistics, 37 percent of children detained in DYS were held on probation violations.

Detention has a disproportionate impact on children of color. Compared with their percentage of the population, a disproportionately high number of youth of color are held in secure detention. Black and Hispanic youth comprised over 50 percent of the children detained in DYS on Nov. 1, 2007.

Reasons for Detention
A number of reasons account for the high percentage of inappropriate detentions of juveniles. Bail decisions by judges, which determine whether the child will be held or released, are supposed to be based on two criteria: flight risk and dangerousness. The bail statute establishes a presumption that a child should be released on personal recognizance unless the judge determines that “such a release will not reasonably assure the appearance of the person before the court.” The court may also hold a child in detention after an evidentiary “dangerousness” hearing, where a judge determines that the child is dangerous and no conditions of release will reasonably assure public safety.

Many of the children currently held in DYS facilities do not pose a flight risk and were not determined to be “dangerous” at an evidentiary hearing and therefore should not be held. In fact, the vast majority of detained youth will not be committed to DYS after their cases are resolved. In 2006, of the 5,438 youth detained in DYS, only 20 percent were later committed to DYS.

In many instances, children are inappropriately held on bail due to misguided decisions made by parents or guardians. A number of children who either have no prior record or a minimal record are detained because a parent refuses to take them home. Judges set low cash bails, such as $1 bail, in these situations. These types of cases usually involve minor offenses – many of them domestic incidents involving family members, such as siblings fighting over the television remote control -- in which the parent or guardian expresses frustration about the child’s behavior at home or at school and does not wish to take the child home. The child may not be obeying the parent’s rules at home or may not be attending school. The parent often sees the delinquency case as an opportunity to “teach him a lesson” by leaving the child in DYS detention for a short period of time. The judge then sets a low bail so that the parents or guardians can then bail the child out if they change their minds.

These cases can frustrate judges who feel that they do not want to send a child home when the parent or guardian is not willing to take them, but who know that holding the child on bail in DYS detention will not help him or her receive the necessary services to address the underlying problem. In fact, detention can have a harmful effect on the child.

Dangers of Detention
Studies have shown that detention can have many negative consequences on children who are held. Detention can be a very traumatic experience for children. Many detained children suffer from mental health problems and can be much better served in the community through the Department of Mental Health (DMH) or other community-based counseling services. Instead of receiving treatment, children with behavioral health problems get worse in detention, not better. One study found that for one-third of incarcerated youth diagnosed with depression, the depression set in after they began their incarceration. Another study suggests that the combination of poor mental health and conditions of confinement can make it more likely that incarcerated teens will attempt suicide and self-harm.

Detention can have serious negative consequences on a child’s education. Children detained in DYS are taken off their Individualized Education Plans, which specify the types of services children with special education needs must receive. This can seriously disrupt their educational services. Because DYS does not offer special education services, many children diagnosed with learning disabilities are not receiving the required educational services. Detention can lead students to drop out of school after they are released from DYS. Studies show that 43 percent of incarcerated youth receiving remedial education services did not return to school after release, and another 16 percent enrolled in school but dropped out after only five months.

Research has shown that once young people are detained, they are more likely than non-detained youth to go “deeper” into the criminal justice system – to be referred to court, see their case progress to adjudication and disposition, have a formal disposition filed against them, and receive a more serious disposition. A Florida study found that even when controlling for other factors, including severity of offense, youth who are detained are three times more likely to end up being committed to a juvenile facility than youth who have never been detained.

Detention can also significantly affect the outcome of the case. For example, many children held on bail want to plead out on the case in order to get out of detention even though pleading out would not be the best legal outcome or in the client’s best interests. The strength of the evidence against the client may be weak, and the case might otherwise be dismissed or end in acquittal. If the child is detained, he or she may be reluctant to wait for the case to work its way through the court process and inappropriately and rashly decide to plead out to the case. While pleading out may allow the client to get out of detention, it has long-term consequences that the child may not fully appreciate at the time.

For example, unless the prosecutor agrees to dismiss the case or give pretrial probation, the client will likely be placed on probation if she decides to enter a plea. Probation can prove problematic, as many children find it difficult to complete probation successfully and later find themselves facing probation violations, which can sometimes lead to a commitment to DYS. Preventing children from accepting dispositions on cases that would have ultimately been dismissed or otherwise favorably resolved is another important reason attorneys should make every effort to keep their clients from being detained.

What Attorneys Can Do
Attorneys should seek to appeal bails to Superior Court if the judge sets an inappropriately high bail. In many cases, bails set in the juvenile court are later reduced by a Superior Court judge at a bail appeal hearing. In contrast to the adult bail appeal process, the juvenile bail appeal process can be somewhat burdensome for busy attorneys, since many counties require the attorney to obtain the paperwork from the juvenile court and probation department, and then deliver it to both DYS and the Superior Court. The juvenile courts should streamline the process so that the difficulty of obtaining paperwork does not serve as an obstacle to attorneys who should appeal excessive bails.

Many children who end up charged with delinquencies suffer from undiagnosed mental health issues or learning disabilities. They may not be receiving the appropriate services, such as counseling or special education services in school. Many of the issues resulting in the client’s court involvement can be addressed through a Child in Need of Services (CHINS) petition. Seeking community-based services to address the underlying problems is more effective than detaining the child in DYS, where the child will not receive individualized services. Pretrial detention will not provide services to meet the school truancy, mental health issues, or behavioral problems that led to the child’s initial court involvement. To prevent the juvenile court from becoming a “dumping ground” for children with unmet behavioral or educational needs, attorneys should make sure they are obtaining information about their clients, requesting medical and school records, and bringing to the court’s attention their clients’ need for services. A referral to DMH, a social worker, counseling, or to an educational advocate in the community would be much more effective in addressing the child’s needs, which will not be met in detention.

If the child’s guardian refuses to take the child home, attorneys should explore other placement options. Sometimes the parent or guardian may not want to bring the child home but will be amenable to having the child stay with another family member. Attorneys should find out if the child could stay with other relatives, even for the short term until the home situation stabilizes.

Referring the child to the Department of Social Services (DSS) is also an option for children whose parents do not want to take them home. An abuse and neglect petition (“51A”) can be filed against the parent or guardian, and the child placed in DSS custody. This option, however, may not be a desirable one for the child because she could be taken out of the home and possibly put in a foster placement.

Attorneys can also seek funds from the court to obtain the services of a social worker as an alternative to DSS. This option has the advantage of allowing the social worker to set up services for the client while maintaining some control over information that is conveyed to the court. Depending on the level of expertise, the social worker can also write a psychosocial assessment that the attorney can present to the court as an aid in disposition.

Counsel for children should exercise caution when agreeing to conditions of release that could serve to set the child up to fail if the client cannot meet the conditions. Under Commonwealth v. Jake J., 433 Mass. 70 (2000), a judge may revoke bail and hold a child in custody if the juvenile fails to obey conditions of release. In Jake J., the judge took the juvenile into custody for failing to obey school rules. This practice routinely occurs, and attorneys should resist agreeing to conditions of release that may be difficult for the client to meet and that are unrelated to the client’s charges, unless absolutely necessary to avoid detention.

Subsequently, attorneys should also argue for a reduction in bail if circumstances have changed – such as if a DSS placement has been found or if other social services have been identified. Judges will often be amenable to releasing the child if attorneys present alternatives to detention or other services to address the child’s needs.

Strategies for Change
One promising effort currently in the early stages of implementation in Massachusetts is the Juvenile Detention Alternatives Initiative (JDAI). Massachusetts was designated a JDAI site by the Annie E. Casey Foundation in October 2006, and DYS has launched pilot sites in Suffolk and Worcester counties. The goals of JDAI include promoting changes to policies, practices, and programs to reduce reliance on secure detention, improve public safety, reduce racial disparities and bias, and stimulate overall juvenile justice reforms. Alternatives to detention can decrease crime and recidivism better than detention. Research has shown that youth who are incarcerated are more likely to recidivate than youth supervised in a community-based setting, or youth who are not detained at all.

Studies have shown that juvenile detention is not a cost-effective method of promoting public safety or meeting the needs of detained youth. One study has shown that for every dollar spent on county juvenile detention systems, $1.98 of “benefits” with respect to reduced crime and costs of crime to taxpayers was achieved. In contrast, diversion and mentoring programs produced $3.36 of benefits for every dollar spent, and multi-systemic therapy produced $13 of benefits for every dollar spent.

More resources should be allocated to community-based alternatives to detention. In fiscal year 2005, Massachusetts allocated five times more money for providing secure residential services to young people in DYS custody than for community-based or nonresidential services.

Community-based programs such as the Detention Diversion Advocacy Project (DDAP), which works with youth in the Dorchester Juvenile Court, also concentrate resources on working closely with young people who are at risk of being detained. Alternative to detention programs can help reduce the number of detained youth and provide them with services that they would not receive in detention. For example, youth involved in San Francisco’s Detention Diversion Advocacy Program recidivate at half the rate of young people in detention.

While JDAI and DDAP are promising initiatives for addressing the detention problem, juvenile advocates should continue to zealously advocate for their juvenile clients to prevent detention and work for their release if they are detained. Attorneys should educate decision-makers, such as judges and parents, about the harmful effects of detention and present them with community-based alternatives to detention to address the child’s needs.