This story was written for The Marshall Project.
A nationwide shift toward abolishing solitary confinement for juveniles, which began to take shape in 2016 after former President Barack Obama banned the practice in federal prisons, has surged ahead in recent months, with a half-dozen states either prohibiting or strictly limiting its use in their youth facilities.
In just the past year, a series of strongly worded federal court decisions, new state laws and policy changes in Wisconsin, Tennessee, New York, California, Colorado, Connecticut and North Carolina have nearly eliminated “punitive” solitary — holding youth in isolation for long periods of time rather than briefly for safety purposes — from the juvenile justice system. It was already largely prohibited in at least 29 states, according to a July 2016 survey of policies in all states and the District of Columbia.
The developments suggest that long-term isolation is rapidly losing ground as an accepted practice within the juvenile corrections profession, and that a child-specific definition of “cruel and unusual punishment” is now being established by courts across the country.
“These diverse courts seem to all at once be coming to the same conclusion: that solitary confinement of kids, who are our most vulnerable citizens, is unconstitutional,” said Amy Fettig, an expert on the issue for the ACLU.
But for youth advocates, ending juvenile solitary will take more work. Twenty-three percent of juvenile facilities nationally use some form of isolation, according to a 2014 study by the U.S. Department of Justice.
The practice still has support from many, though not all, juvenile corrections administrators and officers, who are often underpaid, overworked and exhausted from double shifts and who believe solitary is the only disciplinary tool available to them without adequate mental health resources or alternative discipline options.
“The front-line staff, historically, they’ve been trained to use isolation as a means to control violent behavior and to keep themselves safe, and now we tell them, ‘Hey, there’s a different way to do things,’” said Mike Dempsey, executive director of the Council of Juvenile Correctional Administrators. “So there is pushback, resistance, fear — a fear that changes like these will basically create unsafe conditions.”
But the momentum for juvenile solitary reform continues, with the latest development coming in July in Wisconsin, where a federal judge ruled that children at the Lincoln Hills and Copper Lake youth prison complex — one of the largest juvenile facilities in the nation and long the subject of litigation — have an age-specific “right to rehabilitation” and that “solitary confinement violates it.”
Under the preliminary injunction issued by Judge James Peterson of Federal District Court in Madison on July 10, Wisconsin officials must stop holding youths in solitary for longer than seven days, and must allow them outside their cells for at least 30 hours a week. (They had previously been held in isolation for periods of 60 days or longer, according to the underlying lawsuit by the ACLU and the Juvenile Law Center.) The youths must also be provided therapy, education and recreation, the judge said.
A spokesman for the Wisconsin Department of Corrections said that while the agency has moved to implement these changes, “The merits of the case have not been decided.”
The injunction echoes one in March by another federal judge, in Tennessee, who blocked a county from placing juveniles in solitary confinement. And in February, a third federal judge, in yet another preliminary injunction, ordered a Syracuse, N.Y., jail to immediately stop putting 16- and 17-year-olds in solitary, citing the Eighth Amendment protection against cruel and unusual punishment.
The rulings also come in the wake of — and perhaps as a result of — two events involving juvenile solitary that drew national attention. The first was the death of Kalief Browder, the 16-year-old from the Bronx who, after being accused of stealing a backpack in 2010 — a charge he denied — was held at the Rikers Island jail for three years, about two of which he spent in solitary. In 2015, after finally having his case dismissed and gaining his release, he hanged himself in his own home.
It was an image that, for many, drove home the total and long-term damage that isolation can do to young people, a group that depends more than most on social contact, educational stimulus, and a sense of purpose. More than half of all suicides in juvenile facilities take place in solitary, according to the Justice Department.
Soon after, in January 2016, Obama banned the solitary confinement of juveniles in federal prisons and also wrote an op-ed article citing Browder’s case and calling the practice “an affront to our common humanity.” It was a largely symbolic move, given that only 26 juveniles were being held in the federal system at that time. But many advocates credit it as an act of policy leadership that has spurred the flurry of state and local reforms in the year since.
In the months following, both California and Colorado legislatively banned the use of punitive solitary in juvenile facilities for periods longer than four hours. (However, an ACLU report published this year notes that despite the new law, Colorado’s youth corrections department placed juveniles in solitary 2,240 times in 2016.) And both North Carolina and Connecticut in 2016 limited the solitary confinement of teenagers held in adult facilities, a different but related policy change. Since youth in adult prisons must by federal law be segregated from adult prisoners, they are often held in isolation for no reason other than to keep them separate.
Yet despite the recent spurt of reforms, according to a Juvenile Law Center report, states like Nebraska are still regularly holding youth in isolation. And in New Mexico, Gov. Susana Martinez vetoed a bill this year that would have restricted solitary for juveniles in adult prisons. She said it would have put guards in danger and hampered their flexibility to choose the best disciplinary options for the most violent inmates and also to keep youths fully separated from adults.
Even in the places where reform has been enacted, the work of translating a judge’s order or a new piece of legislation into actual, sustained culture change remains to be done, according to a report from the Juvenile Law Center.
Indeed, many juvenile justice agencies, when challenged by litigation or legislation, simply rename solitary confinement using one of a variety of well-worn euphemisms: “room confinement,” “special management unit,” “restricted engagement,” “administrative detention,” “time out,” or even “reflection cottage.” Other agencies just reclassify the type of isolation as “nonpunitive” in their official statistics, calling it “temporary” or for the limited purpose of protecting the youth or those around him from harm.
“Anytime you’re talking about new or additional training,” said Dempsey, the executive director of the juvenile corrections administrators council, “it does cost money. It takes investment in alternative techniques, and that can be hard because in this line of work there’s always turnover and staff shortages.”
That’s why Dempsey’s organization and the Stop Solitary for Kids campaign, which aims to end juvenile solitary within three years, provide on-the-ground technical assistance to state and local agencies that might otherwise be inclined toward superficial reform. Juvenile justice officials from Kansas, for instance, were brought to a successful facility in Massachusetts to observe alternatives to solitary for themselves, said Mark Soler, executive director of the Center for Children’s Law and Policy and a leader of the campaign.
To Fettig, the ACLU advocate, the cause could not be more urgent. “Imagine if you left a kid locked in a small room for 70 days. Well, that same action is taken by state governments all over this country!” she said. “When you do this to children, they do not come back.”
This story originally appeared in The Marshall Project.
LOS ANGELES — California’s juvenile prisons have long had a poor reputation as mere stops on the way to grown-up prisons, overcrowded places where reform or rehabilitation were rarely achieved.
That bad rep might help explain why most Californians voice some support for closing youth prisons, according to a recent survey commissioned by the California Endowment, a private health foundation.
A majority of respondents want to close juvenile corrections facilities on those terms, with 22 percent voicing strong support and 39 percent saying they “somewhat support” closures. Only 13 percent were strongly opposed to the idea, while 20 percent remained “somewhat opposed.”
Instead of feeding teens into a system that exacerbates trauma and harm, we need to offer meaningful alternatives, Democratic Sen. Holly J. Mitchell said.
“We need to get frank about the overpolicing in certain communities and the perceptions that black and brown kids are more violent and less deserving, and how that impacts their lives,” she said. “In some cases, the pendulum has swung way too far, to where kids’ typical adolescent behaviors have been criminalized.”
Dr. Robert K. Ross, president and CEO of the California Endowment, a private health foundation that commissioned the survey, praised Californians in a statement for understanding “what the research clearly shows: incarcerating young people is a failed strategy that must be replaced with what works” by shifting “tax dollars from punishment to prevention.”
Between June 19 and 23, researchers conducted an online survey and collected responses from 1,042 California adults. The study, which set quotas for respondents to ensure a “representative, demographically balanced sample,” found little difference along lines of gender, age, ethnicity or political party. In a rare moment of bipartisan agreement: Sixty-seven percent of Democrats and 50 percent of Republicans voiced some support for closing youth prisons, with 47 percent of GOP respondents opposed and others declining response.
Across the board, more people supported closing juvenile prisons — to the tune of five to 10 percentage points — after hearing about their high costs, some of the reasons behind incarcerations and the racial disparities in the system.
California spends more than $1 billion a year on its youth prison system — one of the nation’s largest — and operates more than 125 state and county lockups, according to the Endowment’s report. Of the 6,000 young people currently locked up, about three-fourths have been found guilty of nonviolent offenses such as theft, vandalism or even running away from home.
About 80 percent of incarcerated youth are black or Latino, according to the report. By comparison, about 57 percent of California youth were black or Latino in 2016, according to the census.
That overrepresentation of youth of color in our juvenile prisons reflects the troubling racial disparity that is seen in the adult prison population, too — a disparity that experts increasingly believe is a result of persistent biases that are present in modern policing, and date back to slavery.
Legislators are troubled by those parallels, and the way adolescents are facing adult consequences for what too-often amounts to childhood indiscretions.
A recent study from experts at the Georgetown Law Center on Poverty and Inequality found that the problem of biases in perceptions are particularly pronounced for black girls, who are viewed by adults as “less innocent and more adult-like than their white peers” when they are 5 to 14 years old. The researchers found that this characterization “may contribute to more punitive exercise of discretion by those in positions of authority, greater use of force, and harsher penalties.
Mitchell and Sen. Ricardo Lara, a Democrat, filed a package of bills this past spring that intend to divert children from landing in juvenile detention facilities, including a provision that would bar kids under the age of 12 from being sent to juvenile prisons, and a mandate that anyone under age 18 speak to an attorney before waiving his or her rights in police interviews. Another bill in the package makes California law reflect the U.S. Supreme Court’s ruling in Miller v. Alabama and bars minors from being sentenced to life without parole.
Although that last bill is rooted in a precedent set by the highest court in the U.S., Mitchell says, like most criminal justice proposals, her legislation faces an uphill battle with advocates for law enforcement and district attorneys in Sacramento. One of the bills in the package has been signed into law; the others are still in the mix.
Mitchell and Lara also want to crack down on what’s called a debt trap in the juvenile justice system — court and detention fees. The Juvenile Law Center, a public interest law firm, says that too often, a family’s inability to pay these fees can push the child deeper into the system. “Racially disproportionate treatment in the system leaves people of color with significantly more criminal justice debt, including burdensome administrative fees,” according to a University of California at Berkeley study.
In California, juvenile corrections have faced reform efforts for years. In 2003, advocates brought a lawsuit (Farrell v. Cate) alleging unsafe overcrowding and the rise of gangs and violence within facilities, among other problems. A consent decree was issued in late 2004 to require state juvenile corrections officials to improve safety, staff training and access to mental health, education and religious services. In 2007, Gov. Arnold Schwarzenegger signed reform legislation that barred low-level offenders from being committed to the state system and offered county probation systems more funding to keep more offenders local.
In the years since, Gov. Jerry Brown has called for California to become the first state to entirely eliminate state-run prisons for juvenile offenders. After years of closures, the state currently operates three youth prisons.
The California Endowment funds coverage in California for Youth Today and the Juvenile Justice Information Exchange.
This story has been updated.
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Decades of research from the fields of criminology and adolescent brain science find that the decisions made in youth — even very unwise decisions — do not crystallize criminality. Instead, as young people age and mature they develop the capacity to make different choices.
Fortunately, more informed policies have begun to replace the punishments that proliferated during the 1990s when fear of “superpredators” and calls for “adult time, adult crime” dominated youth crime policy. The incarceration rate for youth in juvenile and adult systems soared then. Today, youth incarceration in juvenile facilities is now half its level of 20 years ago. Driven by the work of advocates, legislators, researchers and judges, many now readily acknowledge that the juvenile justice system should be used sparingly and only for those who truly need confinement.
Based mostly on the adolescent brain science discoveries that concluded that executive functioning is not fully developed until adulthood, in 2005 the Supreme Court ruled in Roper v. Simmons that the death penalty for juveniles violated the 8th Amendment. The Supreme Court has taken up the issue of severe sanctions for juveniles three more times since then, and as a result there are restrictions in the use of life without the possibility of parole (LWOP) for juveniles.
Changing public sentiment regarding the wisdom of sending young people to adult prisons has led policymakers in many states to revise misguided policies in this area. Many juveniles who would otherwise be languishing in adult prisons are now either in juvenile confinement facilities that are better designed for their needs or have been diverted from confinement altogether. In 2015, the number of juveniles held in adult prisons declined to less than 1,000, an 82 percent drop from the peak year in 1997.
These reforms have not resulted in any adverse public safety outcomes. Crime continues to be at historic lows.
Despite these advances, more than 9,000 people who were convicted as youth still do not stand to benefit from reforms either in the juvenile system or of the restrictions on punishments in the adult system. The Sentencing Project recently released a national study on the prevalence of life sentences nationwide, disaggregated by crime of conviction, race and ethnicity, gender and juvenile status. We obtained data from the states and federal Bureau of Prisons on the number of people serving three categories of life sentences: life with the possibility of parole (LWP), LWOP and virtual or de facto life sentences that amount to terms of 50 years or more. We learned that 1 in 7 prisoners is serving one of these sentences and that nearly 6 percent of the lifer population was under 18 at the time of the crime.
Aside from the roughly 2,300 individuals serving JLWOP there are approximately 7,000 juveniles who are serving parole-eligible life sentences around the country. For them, a statutory mandate or judicial decision has determined that spending the rest of their life in prison is reasonable if parole is not granted sooner. In New York, Georgia and Texas, more than 600 people sentenced for crimes in their youth have parolable life sentences. In California, which leads the nation in the category of life sentences, a notable 2,700 individuals are serving parole-eligible life for a crime committed under age 18.
In addition to the 7,000 juveniles serving life with parole, nationwide 2,000 individuals are serving de facto life sentences of 50 years or more for crimes committed when they were less than 18 years old. Louisiana reports 600 virtual lifers who were juveniles when their crime occurred and Texas reports nearly 450 such individuals.
The crimes committed by these juveniles were typically serious: 82 percent of lifers with the possibility of parole have been convicted of a homicide, and for half of these the crime was a first-degree murder. Among those serving de facto life for crimes committed as juveniles, 56 percent were convicted of a homicide and 94 percent were convicted of violent crime, including 22 percent for aggravated assault.
As with all life sentences, racial disproportionality is evident. African-American youth comprise more than half (53 percent) of the parolable and virtual life sentences, slightly less than their composition among the JLWOP population (63 percent). Overall, youth of color make up 81 percent of those serving life and virtual life sentences.
Some states stand out in the proportion of life and virtual life sentences being served by those who were young at the time of the crime. In Wisconsin, for instance, more than 11 percent of the life-sentenced population was a juvenile at the time of the crime. And while a first opportunity for parole comes after “only” 20 years in Wisconsin, we know from mounting research in parole politics and practices that rates of granting parole have fallen, particularly for those convicted of serious crimes and serving lengthy sentences. In Georgia, which in 2016 reported 600 people serving parole-eligible life sentences for crimes committed in their youth, the first opportunity for parole does not occur for 25 to 30 years. In Tennessee, the first parole hearing occurs only after a minimum of 51 years.
The requirement set forth in Graham v. Florida of a “meaningful opportunity for release based on demonstrated maturity and rehabilitation” has shined a bright light on parole systems’ capacity and willingness to afford a second look, and when this should occur. In June, the Supreme Court ruled in Virginia et al. v. Dennis LeBlanc (582 US ___) that Virginia’s “geriatric release” mechanism provided a sufficiently meaningful opportunity for release. Geriatric release allows review for those 60 years old and older; this means that LeBLanc and other people in his position will wait more than 40 years before being considered for release.
This and other lengthy terms of imprisonment stand to violate the spirit if not the letter of the recent court rulings. They also conflict with recent recommendations of the American Law Institute, a respected body of legal scholars and law practitioners that proposes a review after 10 years for any juveniles sentenced to terms longer than this.
Revised state laws for sentencing juveniles are being developed in the aftermath of the Supreme Court rulings. It is important to include in these considerations all youth with life and lengthy terms; their potential for reform and maturation is just as likely as for those sentenced to life without parole.
Ashley Nellis, Ph.D., is a senior research analyst at The Sentencing Project and the author of numerous research reports on life sentences, most recently “Still Life: America’s Increasing Use of Life and Long-Term Sentences.”
A new California law that gives all juveniles the right to a hearing before they can be transferred to adult court will require training and vigilance across the state to put in place, supporters say.
Among the many boxes to check off: Many defenders, prosecutors and judges have to learn how to apply the law’s intricacies. The juvenile system as a whole has to prepare to offer services to teenagers who likely would have ended up in adult prison. And the legal community will have to grapple with whether the law applies to cases already in the works.
“The rules are going to be very different,” said Sue Burrell, policy and training director for the Pacific Juvenile Defender Center, which supports the changes.
After voters approved Proposition 57 by 64 percent on Tuesday, Burrell sent out guidance to the state’s juvenile defender community about implementation. Just a day later, she had dozens of replies from attorneys eager to make the most of the law.
The measure reverses a policy enacted in 2000 that gave prosecutors authority to bring charges against some juveniles in adult court rather than making the case for a transfer before a juvenile judge, a process known as direct file.
Proposition 57 puts power back in the hands of judges where it belongs, rather than with prosecutors, said Daniel Macallair, executive director of the Center on Juvenile and Criminal Justice.
“It allows a more deliberative approach, a more thoughtful approach and that’s the way it should work. It shouldn’t be a quick decision, made sometimes in as little as 48 hours, often with scant information,” he said.
The measure also changes the parole system for adults, provisions that were strongly opposed by some in the law enforcement and prosecutor communities. Some also argued against the end of direct file, saying it would eliminate a valuable tool to promote public safety.
A spokeswoman for the California District Attorneys Association said the organization will be reviewing the measure’s implications and deciding on the most appropriate way to offer training and resources to their members.
Every state has ways to transfer a juvenile to adult court, most commonly by a judicial hearing. But some states also give prosecutors discretion to decide who ends up in adult court or include in state law a list of serious crimes that must be charged in adult court. Other states, including Vermont and Indiana, also are reforming their transfer policies, though California’s new policy is among the most ambitious.
Under the new law, the only way for a juvenile in California to end up in adult court will be if a judge decides that is the most appropriate setting for him or her. The judge will have to consider criteria that take into account teenagers’ ongoing development and potential to change before sending him or her to adult court.
The criteria, which were expanded under an earlier law and included in Proposition 57, are an improvement that will give judges a fuller picture of a youth’s situation, Burrell said.
“The things that a court will look at are much more helpful to teenagers than the previous criteria were. They’re much more developmentally appropriate,” she said.
In addition, the law no longer places the burden on juveniles to prove they deserve to stay in juvenile court, said Frankie Guzman, a staff attorney at the National Center for Youth Law. Prosecutors instead will have to make their case to a judge.
Analysts and supporters expect the changes will result in fewer juveniles ending up in adult court. But that means the juvenile system has to be prepared to handle more teenagers charged with serious crimes, who likely need significant services and treatment, Guzman said.
“We also have to make sure the programs and services line up and actually meet the increased demand because we’re going have more high-needs kids. If we’re going to serve public safety well, we have to serve them well,” he said.
The state should focus on improving behavioral and mental health services, mentoring programs and other interventions that can put young people on a healthy path, Guzman said. Locking teenagers up, albeit in the juvenile rather than the adult system, is not a solution for most young offenders, he added.
“The continuum of care needs to be monitored and invested in; we should not allow prosecutors and law enforcement to use the next most harmful option,” he said.
Another question for the justice system will concern whether the new law applies retroactively to active cases, a question Proposition 57 is silent on. Supporters intend to argue it does, potentially sending hundreds of cases to a hearing, Burrell said.
An analysis by the district attorney’s association says the provisions may not apply retroactively but argues it may be easier, and less risky, to allow for a hearing, at least in adult court.
Meanwhile, voters in a number of other states also considered justice reform measures on the ballot, including changes in Oklahoma. Voters there approved reclassifying some drug and property felonies as misdemeanors. Any financial savings will be reinvested in substance use and mental health services.
Those who equate juvenile justice reform with better institutions should consider the California lesson. For the past 13 years, the state’s youth correctional system operated under court monitoring due to its failure to provide rehabilitative services or a safe environment.
The “Farrell lawsuit,” brought by the Prison Law Office, cited a list of institutional abuses that have plagued the American juvenile justice system since the 19th century. Rather than places of rehabilitation, California youth correctional facilities were institutions of rampant violence, abuse and mismanagement. The lawsuit demanded that the state make changes to eliminate the violence and promote a rehabilitative environment.
This past February, the Farrell lawsuit came to an end, with both sides declaring success and promising a new era in California youth corrections. Almost immediately, the state’s youth corrections system, the Division of Juvenile Justice (DJJ), dispatched staff to California juvenile courts and county departments to urge increased commitments.
Since the state institutions had long been used as a convenient dumping ground for challenging, high-needs youth by many county juvenile justice systems, the impact was almost immediate. With DJJ collaborating with district attorneys and probation staff to convince judges that the facilities were truly reformed, our agency, the Center on Juvenile and Criminal Justice (CJCJ), began receiving alarming reports from juvenile defenders throughout the state about unprecedented increases in DJJ recommendations and commitments.
The tendency for juvenile courts to increase institutional commitments after a period of reform is a common pattern in state history. During the 1950s and ’60s, when California’s youth corrections system conveyed a similar image of progressive reform, juvenile courts responded with a flood of new commitments. The system was soon overwhelmed, and the image of well-run institutions that had been assiduously fostered by state corrections leaders proved false and unachievable.
A fundamental reality often forgotten by juvenile justice reformers is that institutional changes are short-lived and staff quickly slide back into conventional, disciplinary practices. This fact is again revealing itself in California, as youth recently released from DJJ tell all too familiar stories of gang warfare, rampant violence, staff brutality and administrative indifference.
To counter this bleak reality, DJJ aggressively promotes itself through juvenile court testimony, presentations to county officials and carefully orchestrated tours designed to foster an image of progressive treatment. DJJ facility visitors are greeted by a team of senior management and professional staff who employ therapeutic language and a polished demeanor to convey confidence and reassurance. They are then escorted to the living units and invited to speak with selected youth under the watch of facility staff. Youth describe how, prior to these tours, they are instructed to respond positively whenever questioned. Failure to properly respond can result in consequences later.
The resilience of institutions to resist change should never be underestimated. California offers a lesson on the limitations of lawsuits to permanently alter institutional realities. By focusing on a narrow range of institutional deficits, the Farrell lawsuit actually served to legitimize the existing system and laid the foundation for its regeneration.
Under conditions lawsuits, success is measured by marginal improvements in institutional functioning. The Farrell lawsuit achieved important objectives, such as reducing the number of youth denied access to education, but left the larger system intact. During the period that the institutions were subject to court oversight, normal routines and practices were temporarily disrupted, but are now quickly re-emerging as the scrutiny is lifted — a pattern very common in California youth corrections history.
Ultimately, the Farrell lawsuit pitted proponents of conditions reform against advocates for institutional closure. With declining youth crime rates, a shrinking pool of DJJ-eligible youth and an oversupply of county institutional beds, California policy experts called for the closure of the three remaining DJJ facilities. Those experts included the nonpartisan Little Hoover Commission and the Legislative Analyst’s Office, which issued reports in 2008 and 2012, respectively.
These proposals were vigorously opposed by institutional advocates who sought to define reform in the context of improved institutional conditions. With support from the corrections establishment, institutional supporters prevailed, and the stage is now set for a resurgence of the state system. A recent proposal by the California Department of Corrections and Rehabilitation to rebuild DJJ institutions is now being promoted as reform.
California’s lesson to juvenile justice reformers is that correctional institutions are impervious to change and that the best reforms are those that keep youth out of institutions. Despite years of efforts to inject new treatment strategies, improve education and broaden vocational training, violence in California institutions remains as pervasive as ever, and numerous anecdotal accounts from youth reflect DJJ’s systemic failures across all aspects of daily institutional life.
The continued reliance on old, institutional structures simply ensures that the mistakes of the past will be the failures of the future. The best insurance against repeating history is to bring an end to the bankrupt system of state correctional institutions and place responsibility and resources for treating youth in the hands of their local communities.
Daniel Macallair is the executive director of the Center on Juvenile and Criminal Justice and a Practitioner in Residence in the Criminal Justice Studies program at San Francisco State University. He is the author of a new book, “After the Doors Were Locked: A History of Youth Corrections in California and the Origins of 21st Century Reform.”
LOS ANGELES — Monserrat Zarza was 15 years old when she was assigned to a group home, only six months after entering the Los Angeles County foster care system. Group homes provide a placement option for hard-to-place children “with significant emotional or behavioral problems,” according to the state of California.
Being in an environment with several dozen other troubled kids was not what Zarza expected when she gathered the courage to pick up her phone and ask for help after a decade of physical and emotional abuse by her mother. She was hoping for a real family home. The idea of a group home scared her.
When Zarza first entered the system, she did live with a foster family for six months. During that period, Zarza’s biological mother told her that she wanted to commit suicide because of the investigation and scrutiny that Zarza had put her through. In reaction to her mother’s accusations and threats, Zarza said she began to abuse drugs to cope with all the trauma and stress she was feeling. That’s why she was discharged from her foster family and reassigned to the Penny Lane Group Home in North Hills, California, after social workers told her they could not find her another foster home.
Now 20, Zarza has tried to make the most of her life since leaving her mother. At Penny Lane, she enrolled in a program to sober up. She said she believed in the system — until one day the group home staff caught her roommate using drugs and called the police. Zarza stood and watched as police officers arrested her friend. She never saw the girl again.
Arrests as behavior control
The use of arrests to control the behavior of foster youth is reportedly an all-too-common practice in many group homes. Denise C. Herz, associate professor of criminal justice at California State University, Los Angeles, has analyzed data on crossover youth in Los Angeles County since 2007. (Crossover youth, or dual status youth, is a term for children who are victims of abuse or neglect who also enter the juvenile justice system.)
For more information, visit the JJIE Resource Hub | Dual Status Youth
In her most recent report, released in May 2015, Herz found that 32 percent of the foster youth who were arrested were living in group homes. She also found in the 15-month study that African-American kids were greatly overrepresented among the crossover kids. Plus 36.6 percent of the crossover population were girls, as opposed to 20 percent in the general juvenile justice population.
Zarza said Herz’s study matched her experience. “When we had a problem, they [the staff in the group home] were supposed to help us get better.” Instead, when it came to her friend, she said, “they just threw the cops at her the first time they caught her using. They should have reached out to her drug counselor first. They should have confiscated the drugs and figured out another way instead of calling the police.”
Juvenile public defender Maureen Pacheco, who has been working with the juvenile justice system for 37 years, agreed that social workers in group homes tend to report youth too easily.
“Social workers see the delinquency court having this power to detain kids. It’s almost like a mother turning to a father and saying, ‘Punish him,’” Pacheco said. “So they look at the delinquency system as having the power to control these kids. And the control is they get locked up. They think of that as a traditional method of disciplining the kids.”
As an example, Pacheco points to a client (called Robert, to protect his anonymity). He lived in a large group home for seven years, she says, dealing with such problems as being adopted and unadopted multiple times. Recently, after tracking down his birth mother, Robert and his sister escaped from their group home to meet her. The experience has caused a flood of emotional issues for him.
Once during lunch, during an argument with a social worker, he mouthed off angrily, saying “I’m going to kill you” as he had a wrench in his hand. The social worker called the police, and Robert was put on probation for 17 months and is still on probation today.
Pacheco said the boy had never been known to be violent, but had often expressed his distress using empty threats. “To me that means this is a kid who is expressing his anger, but he is not somebody who is going to be a danger,” she said. “But because they [the group home staff] have liability for other people in the group home, they almost have to overreact in order to not have a situation where other kids get hurt. It is very discouraging because the liability has become their number one concern, not the well-being of the kids,” she said.
“With my two teenage sons, there were times when they would say horrible things to each other and make threats to each other. In a private home you are not likely to say, ‘I am going to call the police and have you arrested.’ You realize it is normal teenager behavior,” said Pacheco.
‘The system doesn’t parent'
Attorney Barbara Duey agrees with Pacheco. Duey, who is an attorney and crossover director for the Children’s Law Center of Los Angeles, said that because social workers often do not have the patience, time or training to adequately assess a kid’s emotional reaction in a high-stress situation, their first response is to pick up the phone and call the police when kids act out, as kids often do.
“The system doesn’t parent, the system just reacts,” she said.
“When I was growing up at home with my sister, we shared a bathroom. We got in fights all the time. If I picked up my hairbrush and threw it at her, and shattered the glass, I’m going to get grounded by my parents,” she said. “However, our kids get arrested for assault with a deadly weapon and vandalism if that same thing happens in a group home setting.”
According to Duey, the overreaction continues after police are called. When a foster youth is arrested while in the group home system, the offense with which he or she is charged is likely to be more serious than if the child is arrested outside the system. For example, the hairbrush toss could be categorized as assault with a deadly weapon. The youth in question would be taken to juvenile hall and the case would go to the District Attorney’s office.
“The next thing you know, they are in court facing felonies. It happens all the time,” Duey said.
Social workers as parents
One of the problems contributing to the overcriminalization of foster children, experts say, is the fact that social workers often have high caseloads and thus do not make good parents.
Zarza was rushed into a group home because her social worker was going to leave town in a week. The social worker promised Zarza she would only stay in the group home for at most three months, after which she would find Zarza another foster home.
“I was really scared at the beginning. I thought something bad was going to happen to me and I kept waiting for her to come back.” But the social worker did not return. “I ended up staying there for 1½ years,” Zarza said.
When the social workers in her group home were overwhelmed, they would often take out their frustration on her and other girls, according to Zarza.
One time, she said, when she asked one social worker for keys to open a closet of clean clothes because she planned to take a shower, the worker asked her to wait. When Zarza came back to ask a third time, the worker told her that she was a “failure.” That’s why Zarza was in a group home, the social worker said, and that was why she would be a loser for the rest of her life like all the other girls.
“I was really hurt because I wasn’t expecting to get insulted like that when I simply asked to get my belongings to take a shower,” Zarza said.
The Los Angeles Department of Family and Children’s Services is short on foster families, so when a family cannot be found for a child, many reportedly wind up in situations similar to Zarza’s.
Judge Michael Nash, the former presiding judge of the Los Angeles Juvenile Court who was recently appointed director of Los Angeles County’s new Office of Child Protection, said the group home is the least preferred placement for children and youths because it is an unnatural setting.
“We see that kids in group homes cross over from child welfare to juvenile justice at a higher rate. We see that kids in group homes have lower education outcomes. We see that a higher number of the kids in group homes are receiving psychiatric medication,” he said.
According to Zarza, when she was in a group home, there were only four social workers in charge of 45 girls. The girls had no privacy and were only allowed to close their dorm doors for five minutes when they were changing. Some girls used this time as an excuse to pick fights. Zarza never adjusted to this living situation.
“I could never live a normal life like any other kid in my age,” she said.
Zarza had no one to turn to when she had problems within the group home. For over a year she and her friends filed grievance complaints but never heard back from anyone.
“It’s not like somebody’s there in your corner as your advocate like a parent would be,” Pacheco said.
‘We are failing them’
The situation Zarza described is not an individual occurrence; it is a problem with the system, according to Pacheco.
“The delinquency system is treated as a dumping ground by the foster care system,” she said. “Social workers use the juvenile justice system when they are frustrated by kids’ noncompliance with the plan. They see the juvenile system as a place where they can lock the kid up. It is a tremendous problem.
“We are failing them,” Pacheco said.
Youth advocates hope that California’s Assembly Bill 403, passed last year, will help ensure that foster youths like Zarza are placed in a healthy living environment. The legislation, which will go into effect on Jan. 1, 2017, will replace group homes with short-term residential facilities designed to provide temporary support to kids with identified needs before returning them to a “family setting.”
During his time leading the Los Angeles Juvenile Court and as supervising judge of the Juvenile Dependency Court, Judge Nash wanted to find a way to ensure that the foster care system accurately focused on kids’ individual needs and that youths were not placed into group homes as a last resort. So he and his colleagues implemented a protocol in 2014 to improve the group home system.
“It [the protocol] says every time the agency wants to place a child in a group home, we need to get a report that tells us why a group home and why this group home,” said Nash. “What’s the specific case plan for the child in this group home? How long is it contemplated that this child will be in this group home?”
Nash admits it will take a while to see solid results from AB 403 and his group home protocol, but he is confident that both will ultimately help foster youths.
Pacheco said she would also like to see some revisions in the role of social workers who help and care for foster youths.
“Having a mentor who understands the system and helps them navigate the system” is important, she said. “Nobody is acting as a parent for the kids so having somebody who can at least advocate for them would be helpful.”
Zarza too is trying to make changes in the system. With this goal in mind, she has joined California Youth Connection to be an advocate for foster youths. She will age out of the system in a year, at 21, and says she wants to do all she can so that other youths in the system won’t experience the same pain she went through.
“I just want my past be my past, my present be present, and my future be different,” Zarza said.
This story is part of a series by reporters from the USC Annenberg School of Communication and Journalism. The series is part of a collaboration between the Juvenile Justice Information Exchange and WitnessLA.
Over the past 15 years, the United States has seen drastic reductions in its world-leading rates of youth incarceration. Nowhere were these reductions more dramatic than in California, which once boasted the largest youth corrections system in the world.
To put this change in perspective, in 1996 California confined nearly 10,000 youths in 11 correctional facilities. Today, the state’s youth corrections system is comprised of three aging institutions with a combined population of about 700. By any measure, California’s unprecedented reduction in youth incarceration places the state at the forefront of 21st-century juvenile justice reform.
While there is reason to celebrate these changes, the slow but ongoing movement of California toward local alternatives to state incarceration of youth offers important lessons and cautionary notes to reformers in other states. Understanding juvenile justice reform in California requires an analysis of its origins.
Most of the decline in commitments to state youth correctional institutions is not the result of lawsuits or new legislation, but is attributable to reductions in serious youth crime. In 1995, 85,100 California youth were arrested for felonies while only 27,700 were arrested in 2014 — a 67 percent decline. While the reasons for the crime decline are the subject of scholarly debate, it appears that approximately two-thirds of the drop is due to a better-behaved generation.
Perhaps one of the greatest lessons to be derived from California’s juvenile justice reform is that crime rates and youth incarceration are not related — a fact typically avoided by scholars and rejected by juvenile justice practitioners.
While the reduction in youth crime is a primary contributor to declining incarceration rates, California’s systemic changes offer important lessons to juvenile justice reformers. Careful analysis reveals that California reduced its youth incarceration rates by at least one-third by promoting local, county-based options.
For much of the 20th century, California had high youth incarceration rates due to a law that allowed county judges to commit youth to state institutions at no cost to the county. This resulted in a “dumping effect” and large jurisdictional disparities when many of the state’s 58 county-based juvenile courts chose to relinquish responsibilities for “problem youth” by shipping them to state-run facilities.
Recent efforts to counter these county commitment disparities began in 1996 when the state passed legislation requiring counties to pay a share of the cost for committing certain low-level offenders to state correctional facilities. The impact was immediate, as the number of new commitments rapidly declined from 3,500 in 1996 to 1,600 in 2001, and fell to just 350 in 2014.
County commitments were further diminished due to a cascade of damning investigations and media revelations that exposed horrible conditions within the state youth facilities. Accounts of ubiquitous gang violence and “gladiator” contests staged by staff generated headlines and attracted public attention to the realities of California’s youth facilities.
The biggest blow came when the Prison Law Office filed suit over inhumane conditions in California’s youth correctional facilities and forced the state to enter into a consent decree. Under the consent decree, the state acknowledged the horrendous conditions within its facilities and agreed to a series of remedial actions.
Initially, institutional violence remained, and efforts to draft new policies and retrain staff proved fruitless. Growing frustration with bureaucratic lethargy led state policymakers and juvenile justice advocates to draft model legislation to accelerate the process. Senate Bill 81, passed in August 2007, included provisions that restricted a county’s ability to commit low-level offenders to the state while providing funds to augment county services. This legislation facilitated another precipitous drop in the institutional population and prompted the closure of all but three of the original 11 correctional facilities.
Once the largest and most violent youth correctional system in the country, California’s decline in youth incarceration is unparalleled, providing valuable lessons for other states. While violence persists within the remaining institutions, fewer youth are exposed to such conditions and the capacity of county juvenile justice systems has been greatly enhanced.
The challenge confronting California juvenile justice is whether the system will continue to move forward with systemic reform or recede into old practices, forgetting the lessons of the past. This issue will be explored in a future column.
Daniel Macallair is the executive director of the Center on Juvenile and Criminal Justice, and author of a new book, “After the Doors Were Locked: A History of Youth Corrections in California and the Origins of 21st Century Reform.”
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Under pressure from the courts to reduce his state’s prison population, California Gov. Jerry Brown has thrown his support behind a plan that’s likely to slash the number of teens who get prosecuted as adults.
If approved by voters, the Public Safety and Rehabilitation Act of 2016 would block district attorneys from charging a suspect under 18 as an adult. Instead, a judge would decide whether teens accused of a violent crime should stand trial as an adult.
Those measures are part of a bigger ballot initiative to reduce California’s prison population, which now tops 127,000. The state is under a court order capping that population, which includes more than 5,000 prisoners held in other states.
The proposal also would let inmates earn credit on their sentences for good behavior and education. In addition, it would let nonviolent inmates qualify for parole once they serve the full term for the most serious charge against them. It needs nearly 586,000 signatures before it can be put on the ballot, however.
“The basic premise is very simple: Judges should judge, prosecutors should prosecute,” Brown told reporters this week in announcing his support. “It’s well-balanced, it’s thoughtful, and I think it’s an important step.”
It’s the latest turn in a big week in juvenile justice news. On Monday, the U.S. Supreme Court ruled its 2012 Miller v. Alabama decision could be applied retroactively, giving hundreds of inmates who were teen offenders a chance at release from life-without-parole sentences via a resentencing hearing. And President Obama banned the use of solitary confinement for juveniles in federal prisons, saying he hoped the move would become a model for states.
The new California initiative would roll back a 2000 measure that required suspects 14 and older to be tried in adult court for murder, rape and several other sex offenses and allowed prosecutors to bring other adult felony charges against teens without a judge’s approval. There were 6,286 inmates whose felonies were committed before they were 18, as of Dec. 31. That's 5 percent of the state's total prison population.
If approved, it would be the latest in a series of steps back from the tough-on-crime measures passed at the state and federal levels during a surge in crime that peaked in the 1990s.
Californians already have voted to reduce most drug possession charges to misdemeanors and let people convicted of those offenses seek to get their charges reduced retroactively. Brown said Wednesday that some of the sentencing laws he supported during his first stint as governor, in the late 1970s, had “unintended consequences” that removed incentives for convicts to go straight.
Brown’s endorsement won cheers from the National Center for Youth Law, which worked with juvenile justice lawyers to help draft the initiative and pushed for the governor’s support. Approval will mean young offenders would again face punishment “in a developmentally appropriate way that allows them to learn from their mistakes,” it said.
“We are particularly heartened that Governor Brown will be speaking out in favor of this initiative, which has the potential to move public opinion forward on issues related to incarceration, especially, of young people,” the NCYL said in a written statement.
This article has been updated.
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From the Center for Public Integrity
Minors with mental health problems and other disabilities are held in “unconscionable conditions” of 23-hour solitary confinement and deliberately cut off from education and other rehabilitation at a San Francisco Bay Area juvenile hall, alleges a lawsuit filed Thursday in federal court in Northern California.
The class-action suit against Contra Costa County probation and county school officials accuses them of locking young wards in small cells for days at a time in response to behavior stemming from the children’s own disabilities — including bipolar disorder — and then illegally depriving them of education as part of a three-tier system of isolation.
The two most severe tiers of isolation imposed on wards are called “risk” and “max,” requiring 23-hour confinement in cells, when “youth with disabilities are outright denied both general and special education entirely,” according to the suit.
The first tier, called “program,” results in up to 22 ½ hours of solitary confinement, during which, the suit says, the county’s policies illegally permit probation (officials) to withhold education as a punishment or for no reason at all.”
Among the suit’s allegations:
- A 14-year-old girl identified as G.F. was put into solitary in a cell for approximately 100 days over the last year, with no education services and short breaks outside only two times a day. Diagnosed with bipolar disorder and attention deficit, the girl was removed from the juvenile hall county school and put into solitary, with officials failing to conduct a mandatory inquiry into whether her behavior was related to her disability.
- W.B. a 17-year-old boy — already found mentally incompetent by a juvenile court — was put into solitary for more than two months out of a four-month period. He began hearing voices, talking to himself, thought he was being poisoned and broke down into a psychotic episode and was hospitalized for three weeks before being returned to the hall.
- Q.G., 17, has been in full-time special education since third grade and has diagnosed behavior problems. Before entering juvenile hall, he was on a special education plan with specific daily behavior intervention services. After becoming a ward, he was put into general education classes and his behavior plan eliminated and he was marked “absent” from classes when put into solitary 30 times. “While in solitary confinement, Q.G. is denied the opportunity to go to school and receives zero credits for the time he has missed,” the suit says.
The lawsuit was filed by a national pro bono law firm, Public Counsel, and Berkeley, Calif.-based Disability Rights Advocates and the San Paul Hastings private law firm in San Francisco. Lawyers filing the suit say they have corresponded with probation and other officials about conditions. They said county officials declined to meet with them, but contended in correspondence that there were security reasons for confining wards in cells. Officials did not address arguments, lawyers said, that they were legally bound to provide education services and proper assessment of special needs and behavior problems.
Contra Costa County Probation Officer Philip Kader was out of the office until next week, officials at his office said, and they declined to comment. Kader is named in the suit, along with the Contra Costa County Office of Education, which supervises education at the hall.
Peggy Mashburn, chief communications officers at the Contra Costa Office of Education — which is also named as a defendant — said that the office had no comment Thursday because it is still reviewing the lawsuit.
Public Counsel lawyer Laura Faer called the policies inside Contra Coast’s juvenile hall — located in the city of Martinez — “broken and draconian.” She said conditions resemble “maximum-security-like” prisons rather than what state and federal law dictate for conditions inside juvenile and treatment for children with disabilities.
“Contra Costa is failing in its actual legal mission to rehabilitate children,” Faer told reporters. Officials are in “100 percent violation” of laws requiring assessment of students and special-education services.
Wards “are routinely locked for days and weeks at a time in cells that have barely enough room for a bed and only a narrow window the size of a hand,” she said. “In these cells, they are unlawfully denied education and special education and contact with teachers and other students. They are denied textbooks and instructional materials.”
She said 14-year-old plaintiff G.F. has received additional punishment for peering outside her cell while in solitary.
Faer told the Center for Public Integrity that isolation, lasting days, not just hours, can stem from physical fights, but also from defiant comments or refusal to follow staff orders — all behavior that frequently stems directly from a ward’s mental health problems or disability. The law requires officials to assess whether poor behavior stems from a disability, and create a plan that specifically address that.
Mary-Lee Smith, attorney with Disability Rights Advocates, said “it is abhorrent” to confine students with disabilities. The system in Contra Costa, she said, is used “without regard to whether the behavior leading to solitary was related to disability. It does so without even inquiring into whether the child has a disability that may be worsened in solitary confinement.”
The county school at the Martinez juvenile hall enrolls about 1,300 students a year, the lawyers said. The hall’s own records show that at least one-third of the wards have disabilities requiring special education services.
The suit notes that California law declares that juvenile halls exist solely for rehabilitation, and “shall not be deemed to be, not treated as, a penal institution” but rather “a safe and supportive homelike environment.”
Instead, inside the Contra Costa hall, the suit alleges: “Young people with disabilities become trapped in a cruel cycle of discrimination” and “are locked away in solitary confinement where their conditions only deteriorate and they fall further behind in their education.”
Faer said juvenile detention officials are required to create “pro-active, positive rehabilitation plans” for wards, but records obtained and reviewed by lawyers indicate that hall and school officials are failing in that duty.
“These are kids. We have a chance here to help them,” Faer said. “But they are pretty much stealing children’s futures.”
Based on a review of the Martinez hall’s policies, the lawsuit says, wards put into solitary for 23 hours are “outright denied both general and special education entirely.”
The use of solitary confinement in California’s state and county juvenile detention centers has prompted repeated attempts by some legislators to impose regulations barring lengthy isolation beyond relatively short periods and frequent staff observation of youths in cells.
A bill along those lines currently pending in California’s state legislature is sponsored by state Sen. Leland Yee, a San Francisco Democrat. It passed the state Senate, and is now before Assembly members, who have adopted some amendments.
The Center of Public Integrity reported on how a previous unsuccessful attempt by Lee to pass a similar bill was met with stiff opposition from law enforcement officials and prison guards who contribute heavily to legislators’ political campaigns.
The Center for Public Integrity is a non-profit, independent investigative news outlet. For more stories on this topic go to publicintegrity.org.
With the signature of Governor Jerry Brown, California, minus a few exceptions, joins the handful of states that guarantee an opportunity at parole to juveniles convicted of murder.
After serving 15 years, most of California’s roughly 300 so-called juvenile lifers will get a chance to ask for something they thought they would never see: a reduced sentence.
The new law allows judges to reduce a life-without-parole sentence to a 25-years-to-life sentence. That means the possibility of an appointment with the parole board.
“It’s very exciting, it’s huge,” said Dana Isaac, director of the Project to End Juvenile Life Without Parole at the University of San Francisco School of Law.
Offenders must show a resentencing judge their remorse and their work toward rehabilitation, under newly-signed Senate Bill 9.
At least seven states already prohibit juvenile life without parole, according to 2010 research by the Campaign for the Fair Sentencing of Youth, a nonprofit. They are Alaska, Colorado, Kansas, Kentucky, New Mexico and Oregon.
Jody Kent Lavy, director of the Campaign, called California’s reform “modest,” but added, “it represents a significant shift away from harsh sentencing policies that ignore the unique characteristics of children.”
Those unique characteristics are immaturity, a reduced ability to gauge risk and reward and other juvenile attributes that the U.S. Supreme Court has said in two recent decisions make young people less culpable than adults.
But Isaac added that she’s not out of a job. “It doesn’t get rid of all juvenile life without parole,” she said. “If you’re convicted of killing a cop or if you tortured your victim you’re not eligible.” Furthermore, a resentencing judge can still decline to reduce the sentence.
Offenders have a maximum three chances, five years apart, to ask for a new sentence.
Brown deliberated for the full 30 days allowed him before signing, announcing his agreement with the bill on the deadline of Sept. 30.
“There were a lot of compromises to get this passed,” said Michael Harris, senior attorney at the National Center for Youth Law, an Oakland, Ca.-based nonprofit that advocates for low-income children. Many prosecutors and victims’ rights groups battled it, while child advocates and mental health groups worked for it. Harris said if he were writing the bill, “I probably would make it a shorter period of time before the first opportunity” at resentencing and raise the number of chances for appeal.
Christine Ward was on the other side of the debate. “We’re disappointed,” said the executive director of the Crime Victims Action Alliance, a Sacramento nonprofit that aims to protect victims’ rights and public safety. “The juveniles that we’re talking about are juveniles that have committed the most heinous crimes,” she said, adding that many of them, if they had been adults, would have been eligible for the death penalty.
“We were comfortable with the way the law was working,” Ward explained. The courts had sentencing discretion, the defendant had the right to appeal, there were “checks and balances,” she said. Now, she opined, “It’s giving some leniency to juveniles who kill.”
But Isaac said, “California has a large percentage of kids who didn’t pull the trigger.” That is, offenders who were present at a murder, or participated at some crime that included a homicide, but did not actually kill.
In states that already have minimum sentences for homicide measured in years rather than “life,” the length varies. North Carolina’s is 25 years; Colorado’s is 40. The Pennsylvania legislature is debating 25 years for younger teens, 35 years for older teens.
Indeed, Pennsylvania and about half the states need new juvenile sentencing guidelines, because the U.S. Supreme Court has knocked down mandatory juvenile life over the past two years.
Isaac thinks other states might look at California’s language. “This could kind of show what can be passed to other states. If other people are thinking of putting forth bills, this could serve as a model of what could be successful,” she said.
Ward, on the other hand, predicted a legal challenge of some sort in California.
The sentence of juvenile life without parole technically remains on California’s books, said Adam Keigwin, who works in the office of bill sponsor state Sen. Leland Yee (D-San Francisco). But all future defendants who receive that sentence will also be able to appeal under SB 9.