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Looking Back and Casting Forward: An Emerging Shift for Juvenile Justice in America

This story produced by the Chicago Bureau.

The close of 2012 focused so narrowly on terrible events and startling numbers - the Newtown massacre, for example, or Chicago’s sharp rise in homicides - some major criminal justice developments were nearly squeezed out of the national conversation.

Take the statements made just over a week ago by Cook County Board President Toni Preckwinkle, who vowed to take on the tricky issue of the skewed racial picture in the county’s corrections and justice system, including within the juvenile justice system.

Speaking to a group of reporters, the news – including a statement that she will “work with the actors in the public safety arena” to lessen the overall corrections population and push alternatives to locking up non-violent offenders – the story got little more than a day’s play on the airwaves and in other media. Always outspoken, the board president served many years as an alderman fighting for various social justice causes, including race and drug issues (she at one point challenged the validity of any national “war on drugs”).

So in saying she would lasso the needed parties to lessen the numbers entering the corrections populations, and continuing the pitch to rid Cook of the juvenile system as currently set up, Preckwinkle made news. The numbers, so often repeated, were underscored in her talk: “The last time I checked,” she said, “68 percent of the people in our jail were African American - or double their proportion in the overall county population. Translated, she is attempting to answer a criminal justice and societal problem that has stymied policymakers, academics and law enforcement, among others, for decades.

And yet, like so much news at the turn of the year, it was swallowed by national news of tragedy, the fiscal crisis and President Barack Obama’s cabinet changes, and the play didn’t last long.

Also struggling to gain traction was a push by advocates, politicians and the courts to tip the balance of juvenile justice away from harsh punishment to rehabilitation. But to do so, Preckwinkle’s promise to fix local correction’s racial imbalance, weighted so heavily against blacks and Hispanics, would have to be addressed.

Graphic courtesy of The Burns Institute

In Shelby County, Tenn., the problem was so profound it recently invited a federal settlement to remedy it. Still, the problem of Disproportionate Minority Contact (DMC) continues to plague minority populations.

DMC, the racial tilt of the criminal justice system, is a long-running issue for many civil rights and advocacy organizations who have put out conflicting studies over the years that compete over the reasons, including low educational achievement and high unemployment among minorities, and urban environments with more open-air criminal conduct where the crime is more easily spotted by police (unlike in suburban and rural areas).

“For so long we’ve invested in building up these institutions (jails, juvenile courts, detention centers) at the detriment of investing in communities and social services, especially in the neighborhoods where [detained] folks are coming from,” said Tshaka Barrows, deputy director of the San Francisco-based Burns Institute, a national non-profit aiming, with law enforcement and community leaders, to erase racial disparity. “And that’s not a productive way of engaging your citizenry. We as a society really need to invest in education, housing infrastructure, etc., because that investment matters, as we see on the justice side.”

The trick is to speed the process and, perhaps, start to eradicate a stain on the system – one that has drawn an increasing volume of suits, legislation, and community pushes to inject balance in a system that too often spins out black and Hispanic minors who are further traumatized by prison, highly unemployable, and lacking a decent education to break the school-to-prison pipeline.

Cycle of Poverty, Incarceration Systemically Tied

Black youth make up 17 percent of the overall youth population in the United States, but they make up 30 percent of arrested juveniles and 62 percent of minors prosecuted in the adult criminal system, according to the D.C.-based Campaign for Youth Justice.

A look at Illinois shows black youth represent 85 percent of the juvenile justice population, according to the Cook County Circuit Court, even though they only represent one-fifth of the state’s youth population.

The problem was accelerated by the high-crime decades of the 1980s and 1990s that introduced severe laws targeting minors to stem a suspected “superpredator” generation that never came to pass. Youth prisons were built. Now they’re empty. Schools placed more and more police officers or guards in schools, something that is now on the map again following Newtown. Now there are studies claiming the presence of more security in the schools has only worsened the problem.

As it is, about 250 youth are locked up in the Juvenile Temporary Detention Center. Roughly 80

Graphic courtesy of The Burns Institute.

percent of that population is black - and year-to-year stats put the black population in juvenile dentition at roughly 75 percent of the total, which includes about 15 percent to 18 percent Hispanics and 7 percent white.

"Why,” asked the board president in Cook County, which covers Chicago, “is there a disproportionate number of black children in the JTDC and what does it say about the way we police our communities?"

Very often, police, called out to crime dens on Chicago’s South and West Sides, sweep streets or target large areas to clear them of crime and blunt the prospects of violent gang reprisals. In doing so, they snatch up a large percentage of black and Hispanic youth, who are most likely to be stuck in the cycle of poverty and poor education that so feeds the criminal justice system.

"It's not necessarily true," she said, "that the more people you arrest, the safer the community you have. And you're more likely to end up in secure juvenile detention if you are African American and display the same behaviors as someone of another race."

Balancing Justice

Since the mid-1970s, the U.S. Department of Justice has recognized the disparity, and taken measures to address it, be it for drugs or other felonies that could land youngsters in adult court. But it’s been a tough, often losing fight.

For example, take drug arrests of minors – a push to tackle a problem that quickly drove incarceration rates up dramatically. But recent studies show states’ recent decriminalization of some use of marijuana – including in California – has already resulted in a downward spiral in youth crime rates.

Already, pot bars are starting to grow up in that state, while others consider following its lead, and still others, including Illinois, are working on laws to ease restrictions on medical marijuana. Also, cops in Chicago have started focusing on greater stashes to justify arrests – meaning fewer people are arrested, and therefore jailed.

Indeed, in California, 2011 saw a 61 percent drop since 2010 of youth arrests for marijuana possession, according to a recent report by the Center on Juvenile and Criminal Justice. The new state law reducing that offense from a misdemeanor to an infraction directly affects juvenile detention numbers, as drug arrests are the leading cause of youth confinement.

What remains to be seen is whether the racial and ethnic disparities of those arrests will also drop. Experts hesitate to be too optimistic considering the institutionalized disparities in America’s juvenile justice system. As with most crimes, minorities aren’t more prone to drug use or drug possession than whites. Nevertheless, minorities count for a disproportionate number of drug arrests.

In 2009, the rate for drug violation arrests for black juveniles was twice the white rate, according to the federal Office of Juvenile Justice and Delinquency Prevention. Black youth are also much more likely (48 times more likely in 2001, and the numbers haven’t budged much since) than white youth to be incarcerated in an adult prison after a first-time drug arrest.

Laws such as California's are attempting to hit this issue from the policy level. But many of the ground-level factors contributing to DMC are not adequately addressed, according to experts in the field.

New York City police statistics show that between 2005 and 2010, police made 2.5 million stops. Of those, 90 percent were people of color and 90 percent did not result in legal action.

“The police are a critical part of the juvenile justice decision-making system and are afforded far more discretion than any other formal agent of social control, but researchers have paid surprisingly little attention to contacts between police and citizens, especially juveniles,” according to criminal justice professor Alex Piquero of the University of Maryland-College Park.

Piquero, in research dating to 2008, said police act as the “gatekeepers” to juvenile courts, and if their decisions are somehow race-based, minorities will continue to be overrepresented in the corrections system.

“The first step is to really address the use of data within jurisdictions … to look at [the numbers] regularly enough to help drive the way people make decisions,” Barrows said.

For example, jurisdictions look at how many kids in juvenile detention centers are from a particular geographic area. In Chicago, the concentration is on the heavily minority neighborhoods on the South and West Sides.

Other standards include the study of race, ethnicity, gender and offense. After assessing it, the idea is to monitor the data and reform the responses and thinking practices that have contributed to systematic disparity.

The Office of Juvenile Justice and Delinquency Prevention was created by – and is directed by – the Juvenile Justice and Delinquency Prevention Act of 1974. Providing a federal grant program, it requires participant states to address DMC through a data-driven approach. This calls for states and communities to assess their DMC levels and develop mitigation initiatives.

However, many in the system, including experts, the affected minors, teachers and law enforcement, say the nearly 40-year-old law has little teeth. As a result, communities nationwide are using increasingly innovative measures to tackle DMC.

Recent models use community interveners or mentors to talk to kids directly, attempting to de-escalate a situation through an adult rather than automatically resorting to detention.

In the New York City neighborhoods of Harlem, Jamaica and South Bronx, the New York Department of Probation is collaborating with residents, businesses and organizations in what is called the Neighborhood Opportunity Network.

This model attempts to connect probation clients to community-based resources and services to avoid recidivism usually caused by ineffective, cyclical, punitive measures. Such initiatives are examples of what Barrows calls a “renaissance” of community engagement and partnership approaches in dealing with racial and ethnic disparities.

However, with today’s Congressional push for spending cuts – as well as ongoing budget deficits at the state level, especially in Illinois – juvenile justice funding has taken a back seat to other, more popular or welcome projects.

"Our big concern right now has to do with the cuts to juvenile justice funding, part of which gets used to make sure [states] comply with JJDPA,” said Benjamin Chambers, National Juvenile Justice Network spokesman. “Without those resources, they don’t have to comply. And that’s a slippery slope.”

Bureau editor Eric Ferkenhoff contributed to this report.

Policy Experts Address the Challenges Facing LGBT Youth in Lockup

OJJDP Webinar examines difficulties in providing adequate services to detained LGBT populations

Why are we focused on LGBTQI youth all of a sudden?” said Mykel Selph, director of the Office of Girls & Gender at the Cook County Juvenile Temporary Detention Center (JTDC) in Illinois.

The DePaul University adjunct professor answered her own inquiry by bringing up findings from a 2010 report that estimates that approximately 15 percent of incarcerated youth self-identify as LGBT and/or gender nonconforming. According to Selph, that means that as many as 40 juveniles in Cook County’s JTDC right now are part of a detained population she believes are often “largely invisible” in the eyes of most policymakers.

Selph was one of three speakers presenting information at Tuesday’s Office of Juvenile Justice and Delinquency Prevention (OJJDP) Webinar, titled Understanding the Importance of Implementing an Effective Justice System Response for Lesbian, Gay, Bisexual, Transgender, Questioning and Intersex (LGBTQI) Youth in Custody. The presentation, hosted by the National Training & Technical Assistance Center, is the third Webinar in the “Understanding and Overcoming the Challenges Faced by LGBTQI Youth” series. Earlier installments in the series have examined topics such as improving the treatment of LGBTQI youth in schools and communities and the role of family in promoting the well-being of at-risk juveniles.

The most-recent Webinar examined the needs of LGBT youth in custody, as well as the impact of new United States Department of Justice (USDOJ) regulations that call for specific protections for detained LGBTQI juveniles.

Selph said that LGBT youths were arrested for prostitution, running away from home or other placements and outstanding warrants at disproportionate rates compared to the general youth population. She also noted that they were at far greater risk for bullying, suicide, substance abuse and sexual transmitted infections (STIs). Additional issues, such as legal or educational concerns, she said, often compound LGBTQI identity.

“We can’t ignore it and we can’t put it aside,” Selph said. “We want to ensure the safety for all youth.”

Selph said emotional safety is often implied, but not necessarily focused on, when addressing LGBT youth in detention facilities. She said that addressing such emotional concerns, particularly for “closeted” youth, were “of the utmost importance, because we don’t know who they are.”

Four years ago, Selph said that her facility enacted a series of new policies and programs that directly addressed the needs of detained LGBT youth. “In 2008, the JTDC began a large reorganization effort under the leadership of transitional administrator Earl Dunlap,” she said.

These policy changes addressed staff shortages, improved and increased mental health and medical care services and introduced annual review processes, as well as developed leadership training programs for management staff and a six-week pre-service training program for incoming staffers. Additional relationships with community agencies were also created, she said, to help provide programming for both detained youth and juveniles on the verge of re-entry.

Selph said that heterosexism and homophobia are commonplace in juvenile detention centers. “One way to address it is through polices,” she said, suggesting that facilities adopt gender neutral clothing, ensure the privacy of detainees while showering and discuss the use of formal names and pronouns for residents.

She advised facility operators to “eliminate” assumptions about gender and sexuality among youth in custody. Selph said that expectations and consequences should be equal for LGBT youth and heterosexual youth alike, while specific programming should address the needs and concerns for LGBTQI populations. By doing so, she said the “trauma LGBTQI youth face in detention” may be lessened or even completely remedied.

Caleb Asbridge, Juvenile Services senior associate at the Moss Group, Inc., said that facility operators needed to take legal rights, facility culture, and policy and operational issues into account when assessing the needs of LGBTQI youth in custody. In addition to safety, security and medical protections, Asbridge advised facility managers to evaluate the “norms and informal procedures” of the facility, as well as note the “level of support for non-traditional sexual orientation and gender identity expression” among staffers.

He advised that facilities develop specific policies for LGBT youth regarding showering, searches and clothing and grooming. Asbridge said that LGBT identities can often complicate things like group management, recreational outlets and transportation in a detention facility. Additional cultural conflicts, he said, means that special precautions must be taken regarding things like intake screenings and information management for LGBT detainees.

LGBT identities, he said, have an especially important context regarding medical and mental health services. Many times, Asbridge said that facility managers mislabel transgender detainees as youth with gender identity disorder, and he notes that most facilities have no guidelines in place to address the needs of youth undergoing hormone therapy treatment. He suggests that facilities offer youth access to family education and outreach resources, as well as reunification and reintegration plans. It’s the facility’s duty, he said, to ensure that LGBT youth return to safe homes and have access to adequate post-release support services.

OJJDP Compliance Monitoring Coordinator Elissa Rumsey spoke about the recently enacted Prison Rape Elimination Act (PREA), a piece of legislation passed in 2003 that wasn’t officially ruled effective by the USDOJ until earlier this week. PREA established four sets of standards applicable in all adult and juvenile detention facilities in the U.S., with specific requirements in place to address the needs of LGBTI youth.

The new guidelines, she said, create standardized definitions of terms like “gender nonconforming” and “intersex” and places greater restrictions on cross-gender searches and examinations.

“This standard requires that facilities shall not search or physically examine a transgender or intersex resident for the sole purpose of determining the resident’s genital status,” Rumsey said. Under the new guidelines, conversations with detainees, medical records, and if needed, medical examinations conducted in private by medical practitioners will be used to determine the proper identifications for residents.

Regarding staff training and education, Rumsey said the new guidelines will teach security personnel how to conduct cross-gender pat-downs and searches of transgender and intersex juveniles in a “professional and respectful manner, and in the least intrusive manner possible.” Additional employee training will be required for employees who may have contact with residents, including training in how to respond to signs of threatened and actual sexual abuse and how to distinguish between consensual sexual contact and sexual abuse between residents.

Rumsey said the guidelines also change how facilities screen for risk of sexual victimization and abusiveness and whether or not specific LGBTI residents should be isolated from the general population - a decision that she said should be approached using “extreme caution” by facility managers.

Staff must now be trained in obtaining information from residents about prior sexual abuse histories, she said. Rumsey advised that staffers take a number of factors into consideration -- including emotional and cognitive development and the resident’s own “perception of vulnerability” -- into consideration when self-identifying LGBTI juveniles are being processed.

Rusmsey said that the guidelines prohibit the placing of LGBTQI residents in particular housing, beds or units based solely on their sexual orientation or gender identity. Even so, she noted that developing procedures for placement of transgender or intersex residents may prove difficult for staffers.

“In deciding whether to assign a transgender or intersex resident to a facility for male or female residents, and in making other housing and programming assignments,“ she said, “the agency shall consider on a case-by-case basis whether a placement would ensure the resident’s health and safety, and whether the placement would present management or security problems.”