preventing the sexual abuse of youth in correctional settings

Transcription

Table of Contents
Introductory Letter
1
Organization Descriptions and Contact Information
4
Part I. Support for the NPREC Standards
7
Part II. Recommendations for Improvements to the Standards
11
1. Employee, Volunteer, and Contractor Training
11
2. Screening and Assessment by Medical and Mental Health Practitioners
12
3. Quality Assurance of Medical and Mental Health Care
15
4. Emergency and Ongoing Medical and Mental Health Care
15
5. Assessment and Placement of Residents
17
6. Non Abusive Sexual Activity between Residents
20
7. Isolation
23
8. Youth in Adult Facilities
25
9. Limited English Proficient (LEP) Children
30
10. Staff Hiring and Qualifications
32
11. Cross Gender Viewing, Searches, and Supervision
34
12. Miscellaneous
35
Part III. Response to Questions in the Advance Notice of Proposed Rulemaking
39
Index to Comments on Specific Standards
44
Appendices
45
A. Hidden Injustice: Lesbian, Gay, Bisexual, and Transgender Youth in Juvenile Courts
B. Relevant Statutory Sections of the Juvenile Justice and Delinquency Prevention Act (JJDPA)
C. Guidance Manual for Monitoring Facilities Under the JJDPA
D. Policy Statements in Support of Removing Youth from Adult Facilities
Dear Attorney General Holder,
Thank you for the opportunity to comment on the National Prison Rape Elimination Commission
(NPREC) Standards for the Prevention, Detection, Response, and Monitoring of Sexual Abuse. Until the
passage of the Prison Rape Elimination Act (PREA) in 2003, federal law did not clearly recognize that
children 1 in detention and correctional settings were particularly at risk of sexual abuse. Yet findings
from the most recent Bureau of Justice Statistics (BJS) survey of youth in juvenile facilities, data
collection mandated by PREA, demonstrate the extent to which youth are at risk of sexual victimization.
According to the BJS data, an estimated 12 percent of adjudicated youth in juvenile facilities
experienced sexual abuse in 2008 and 2009: 10.3 percent of youth surveyed reported an incident
involving a staff member and 2.6 percent reported an incident involving another youth. 2 We know from
other studies that youth are at an even higher risk of abuse when placed in adult facilities. 3
The sexual abuse of youth in juvenile detention facilities, adult jails and prisons, lockups, and community
corrections must stop. Every day in the United States, state and local courts and governments manage
over 100,000 youth in out of home care and supervise several hundred thousand youth on probation.
The majority of youth in out of home placements are incarcerated in juvenile detention facilities or
long term youth correctional facilities. However, thousands of youth are placed in non secure
community corrections settings such as group homes or shelters, held temporarily in lockups, and
incarcerated in adult jails and prisons. Therefore, each of the four sets of standards proposed by the
NPREC, not just the juvenile standards, has a role to play in the prevention of the sexual abuse of
children.
As the recent sexual abuse scandals in Texas and Indiana have shown, strong standards are urgently
needed to protect juveniles from this devastating but all too common abuse. The Commission’s
standards go a long way toward making clear that no court sentence, regardless of the offense, should
ever include sexual victimization. The sexual abuse of young people violates their basic human rights,
violates the government’s constitutional obligation to provide safe and humane conditions of
confinement, and impedes the likelihood of a successful transition to adulthood. We believe that full
implementation of the NPREC standards not only will reduce sexual abuse, but also will help reduce
other forms of physical abuse or gang violence that make detention and correctional settings dangerous
to staff and residents.
1
The terms children, youth, and young people are used interchangeably throughout this document to refer to: (1) persons
under the age of 18; and (2) young people through the age of 25 who are under the jurisdiction of the juvenile court or are
detained in juvenile detention or correctional facilities.
2
Allen J. Beck et al., Bureau of Justice Statistics, Victimization in Juvenile Facilities Reported by Youth (Jan. 2010), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/svjfry09.pdf.
3
Campaign for Youth Justice, Jailing Juveniles: The Dangers of Incarcerating Youth in Adult Jails in America (Nov. 2007),
available at http://www.campaignforyouthjustice.org/Downloads/NationalReportsArticles/CFYJ
Jailing_Juveniles_Report_2007 11 15.pdf.
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Although we strongly support the standards, some important changes are necessary to enhance the
standards’ capacity to fulfill the mandate of the Prison Rape Elimination Act and prevent harm to youth.
Our detailed recommendations include the following key issues:
Direct Supervision: Appropriate supervision ensures that staff can identify problem signs among
youth early on. Responsible, professional adults trained in adolescent behavior and development
should engage in continuous, direct supervision of youth and should not rely on video surveillance.
Employee, Volunteer, and Contractor Training: Those who work in facilities that house youth
should receive training on adolescent development, the prevalence of trauma and abuse,
mandatory reporting requirements, and the agency’s zero tolerance policy on sexual abuse of
incarcerated persons.
Screening and Assessment by Medical and Mental Health Practitioners: The standards should
preserve the caretaking relationship medical and mental health professionals have with youth by
eliminating any inquiries by medical and mental health staff into a youth’s history of engaging in
sexual abuse (i.e., any prior offending behavior). This information can be gathered by other staff.
The standards should require that medical and mental health professionals obtain informed consent
before sharing sensitive information gathered at intake for housing, education, and other purposes.
Quality Assurance of Medical and Mental Health Care: Medical and mental health programs should
engage in quality assurance activities, of which compliance with these standards should be a part.
Emergency and Ongoing Medical and Mental Health Care: The standards should ensure access to
prophylactic HIV treatment and emergency contraception and pregnancy related services.
Assessment and Placement of Residents: The standards should provide more specific guidance on
how to use individual safety plans to keep vulnerable youth safe and avoid resorting to blanket
policies for certain groups, such as lesbian, gay, bisexual, or transgender (LGBT) youth. Specifically,
the standards should require that facilities develop such plans using information from assessments,
encourage residents to inform staff during intake if they fear being abused, and require facilities to
house youth whose underlying offense is a status offense (i.e., when they are detained pursuant to a
valid court order) separately from other residents.
Non Abusive Sexual Activity between Residents: Facilities may prohibit voluntary consensual sexual
activity among residents by rule. However, the standards should not treat such activity as sexual
abuse, as it may lead to overly harsh responses that misuse limited resources and have a
disproportionately negative impact on certain groups, such as LGBT youth.
Isolation: The standards should include a clear statement of the dangers associated with isolation in
order to reinforce a facility’s responsibility to keep children safe without resorting to that practice.
Additionally, youth who engage in sexual abuse should not be subjected to prolonged disciplinary
isolation as punishment for that behavior.
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Youth in Adult Facilities: The Adult and Lockup Standards should ensure that youth are not held in
adult facilities outside of the narrow circumstances allowable under federal law and policy. While
children should never be housed in adult facilities, the child specific protections such as the "sight
and sound separation" and six hour maximum under the Juvenile Justice and Delinquency
Prevention Act (JJDPA) should apply to youth who are held in adult facilities.
Limited English Proficient (LEP) Children: LEP youth not only must understand sexual misconduct
policies and reporting procedures, but also must be able to communicate with staff during other
important phases, including investigation, medical and mental health care, and other supportive
services. The standards should reinforce the need to provide culturally and linguistically appropriate
services to youth and their families.
Staff Hiring and Qualifications: The standards should ensure the agency hires, retains, and
promotes staff members who are qualified by experience, education, and background to protect
children by considering information from civil protection orders and annual criminal background
checks.
Cross Gender Viewing, Searches, and Supervision: By prohibiting the viewing of residents of the
opposite gender who are nude or performing bodily functions and by limiting cross gender pat
down searches, the standards underscore the need to protect youth from harmful cross gender
interactions and recognize that a large percentage of sexual abuse of young people in facilities is
perpetrated by staff members of the opposite sex. The standards also should prohibit one on one
cross gender supervision and provide additional guidance on how these prohibitions apply to
transgender residents.
We urge you to promulgate the Commission’s standards with our recommended modifications without
delay. Every day that these critically important measures are not in place, youth will continue to be
abused while in custody.
Thank you for your consideration.
Sincerely,
Neelum Arya, Campaign for Youth Justice
Sue Burrell, Youth Law Center
Jessica Feierman, Juvenile Law Center
Samantha Harvell, First Focus
Bert L'Homme, Children’s Defense Fund
Jody Marksamer, The Equity Project
Dana Shoenberg, The Center for Children’s Law and Policy
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Organization Descriptions and Contact Information
Our organizations are committed to policy reforms that remove youth from adult facilities, improve the
conditions of confinement for youth held in juvenile facilities, and ensure that youth under community
supervision are kept safe. Many of our organizations have extensive experience working to improve the
conditions of confinement for youth held in juvenile and adult facilities. Please feel free to contact us if
you have questions about our recommendations or other concerns regarding children and youth.
The Campaign for Youth Justice (CFYJ) is dedicated to ending the practice of prosecuting,
sentencing, and incarcerating youth under the age of 18 in the adult criminal justice system.
CFYJ advocates for reforms to the justice system by serving as a clearinghouse of information on
youth prosecuted as adults; conducting original research; providing support to federal, state,
and local elected officials, policymakers, and advocates; coordinating outreach to parents,
youth, and families; and leading national coalition efforts to reauthorize the Juvenile Justice and
Delinquency Prevention Act.
Staff Contact: Neelum Arya, Research and Policy Director, (202) 558 3580, [email protected]
The Center for Children’s Law and Policy (CCLP) is a public interest law and policy organization
focused on reform of juvenile justice and other systems that affect troubled and at risk children,
and protection of the rights of children in those systems. The Center’s work covers a range of
activities including research, writing, public education, media advocacy, training, technical
assistance, administrative and legislative advocacy, and litigation. CCLP has a central role in
major foundation funded juvenile justice initiatives in the United States including the John D.
and Catherine T. MacArthur Foundation’s Models for Change initiative and the Annie E. Casey
Foundation’s Juvenile Detention Alternatives Initiative (JDAI). CCLP staff provide training and
technical assistance nationwide on assessing conditions of confinement in juvenile facilities,
investigate potentially abusive conditions for youth in locked juvenile and adult facilities, and
advocate for needed changes to the Prison Litigation Reform Act.
Staff Contact: Dana Shoenberg, Senior Staff Attorney, (202) 637 0377 ext. 107,
[email protected]
The Children’s Defense Fund (CDF) is a non profit child advocacy organization that has worked
relentlessly for more than 35 years to ensure a level playing field for all children, with special
attention to the needs of poor and minority children and those with disabilities. CDF champions
policies and programs that lift children out of poverty, protect them from abuse and neglect,
and ensure their access to quality health and mental health care and early childhood and
education experiences. CDF's Cradle to Prison Pipeline® Crusade seeks to achieve a fundamental
paradigm shift in policy and practice away from punishment and incarceration and toward
prevention and early intervention and sustained child investment.
Staff Contact: Bert L'Homme, Coordinator of the Cradle to Prison Pipeline® Crusade,
(202) 662 3554, [email protected]
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The Equity Project is an initiative to ensure that lesbian, gay, bisexual, and transgender (LGBT)
youth in juvenile delinquency courts are treated with dignity, respect, and fairness. The Equity
Project examines issues that impact LGBT youth during the entire delinquency process, ranging
from arrest through post disposition. Core activities of The Equity Project include: gathering
information from stakeholders about LGBT youth in juvenile delinquency courts, identifying
obstacles to fair treatment, reporting findings, and crafting recommendations for juvenile justice
professionals. The Equity Project recently released Hidden Injustice, the first effort to examine
the experiences of LGBT youth in juvenile courts across the country (see Appendix A). The report
is based on information collected from 65 interviews with and a survey of 414 juvenile justice
professionals, including judges, defense attorneys, prosecutors, probation officers, detention
staff, and other juvenile justice advocates; focus groups and interviews with 55 youth who
possess relevant firsthand experience; and an extensive review of relevant social science and
legal research findings. Partners of The Equity Project include Legal Services for Children,
National Center for Lesbian Rights, and the National Juvenile Defender Center.
Staff Contact: Jody Marksamer, Staff Attorney, (415) 365 1308, [email protected]
First Focus is a bipartisan advocacy organization that is committed to making children and
families a priority in federal policy and budget decisions. First Focus brings both traditional and
non traditional leaders together to advocate for federal policies that will improve the lives of
America’s children. Child health, education, family economics, child welfare, and child safety
are the core issue areas in which First Focus promotes bipartisan policy solutions. With respect
to child safety, First Focus works to ensure that our children grow up in a setting that is safe
from physical and environmental hazards that can have far reaching effects on a child's well
being. First Focus works to protect children from hazardous consumer products and other
substandard physical, chemical, and environmental living conditions. In addition, First Focus
works to increase investments in criminal prevention and intervention efforts for at risk youth,
such as those in the juvenile justice system.
Staff Contact: Samantha Harvell, Senior Director, Early Childhood and Juvenile Justice Policy,
(202) 657 0683, [email protected]
Juvenile Law Center (JLC) is one of the oldest multi issue public interest law firms for children in
the United States. JLC maintains a national litigation practice that includes appellate and amicus
work. JLC promotes juvenile justice and child welfare reform in Pennsylvania and nationwide
through policy initiatives and public education forums. JLC uses the law to protect and promote
children’s rights and interests in the child welfare and juvenile justice systems, with a particular
emphasis on ensuring that public systems do not harm children and youth in their care. JLC
works to ensure that the juvenile justice and child welfare systems, which were created to help
vulnerable children and youth, provide them with access to education, housing, physical and
behavioral health care, employment opportunities and other services that will enable them to
become productive adults.
Staff Contact: Jessica Feierman, Supervising Attorney, (215) 625 0551, [email protected].
Page 5
The Youth Law Center (YLC) is a public interest law firm that works to protect children in the
nation's foster care and juvenile justice systems from abuse and neglect, and to ensure that they
receive the necessary support and services to become healthy and productive adults. Since
1978, its lawyers have worked across the United States to reduce the use of out of home care
and incarceration, to ensure safe and humane conditions in out of home placements, to keep
children out of adult jails, and to secure equitable treatment for children in both systems. Its
efforts have focused on strengthening families and on advocating for education, medical and
mental health, legal support, and transition services needed to assure children's success in care
and in the community. YLC advocates for increased accountability of the juvenile justice and
child welfare systems, and champions professional and public education.
Staff Contact: Sue Burrell, Staff Attorney, (415) 543 3379 ext. 3911, [email protected]
Page 6
Part I. Support for the NPREC Standards
The juvenile justice system was designed in recognition of the developmental differences between adult
and juvenile offenders and the need to provide a rehabilitative and therapeutic environment to ensure
that youth become healthy and productive members of society. The majority of youth who have
contact with law enforcement and the justice system pass through the justice system only once, never
to return. Yet if they are sexually abused, they will live with lifelong consequences that may include
persistent mental illness and tendencies toward substance abuse and further criminal behavior. Justice
agencies thus have a responsibility and a challenge: prevent sexual abuse now or risk long term
consequences for victims.
The Commission’s standards make clear that no court sentence, regardless of the offense, should ever
include sexual victimization. The NPREC consulted with individuals with a broad range of correctional
expertise when drafting the standards. As a result of the extensive input from corrections practitioners,
including juvenile facility conditions experts and facility administrators, the Commission’s standards
reflect pragmatic solutions to a complicated problem. We are pleased to see that all four sets of
standards reflect a comprehensive approach that encompasses the critical areas necessary to prevent
abuse. Among the strengths of the NPREC standards are the following:
Prevention Planning (PP) and Response Planning (RP) standards make clear to officials that
their facilities must have a zero tolerance approach to all forms of sexual abuse and protocols
that ensure an effective response to sexual violence when it occurs. Hiring and retaining
qualified employees is one of the most significant challenges facing corrections officials.
Standard PP 6 (and PP 7 for Lockups) will help prevent adults who prey on children from being
hired or promoted if they have a history of prior abuse against children. Juvenile Standard RP 1
will ensure that forensic medical examiners are trained in the unique psychological and
emotional conditions of younger victims of sexual abuse so that they can conduct reliable and
sensitive examinations where youth are involved. Standards RP 2 through RP 4 ensure that
facilities coordinate with appropriate outside entities to support the reporting, investigation and
prosecution of sexual abuse of children.
Training and Education (TR) of employees, volunteers, contractors, and residents in facilities will
help them know how to prevent, detect, and respond to incidents. We are especially pleased to
see the requirement of specialized training for those completing sexual abuse investigations and
for medical and mental health providers so they will know how to respond effectively without
creating further trauma for youth victims. Staff training and supervision are crucial; staff need
to understand the harmful nature of sexual abuse involving children and its potential
consequences. We think it is valuable that Adult, Juvenile, and Community Corrections Standard
TR 3 will also ensure that educational materials targeted to the
inmate/resident/defendant/offender will be in accessible formats appropriate for the age and
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level of cognitive and emotional development, including persons who have limited English
proficiency, are deaf, are visually impaired, or otherwise have a disability.
Screening for Risk of Sexual Victimization and Abusiveness (SC) in the adult standards and
Assessment and Placement of Residents (AP) in the juvenile standards will help ensure that
placement or classification decisions will take into account each individual’s particular risk of
victimization. We commend the NPREC for recognizing the harms isolation can cause, especially
for young people, and are glad to see the limits on isolation in the standard requiring that youth
at high risk of sexual victimization will only be placed in segregated housing as a last resort, and
then only until an alternative means of separation from likely abusers can be arranged. We
believe that the standard should go even further to prevent unnecessary use of isolation, as
discussed below. The Adult and Community Corrections Standard SC 2 is crucial to ensuring that
lesbian, gay, bisexual, transgender (LGBT), or other gender nonconforming inmates are not
placed in segregated units or given particular housing assignments solely on the basis of their
sexual orientation, genital status, or gender identity. We believe this provision should also be
included in Juvenile AP 2.
Standards related to Reporting (RE) and the Official Response Following an Inmate Report (OR)
will ensure that incidents of sexual abuse can be easily reported, and clear policies and
procedures will ensure that staff and agency leadership provide a coordinated response (OR 4)
and prevent retaliation for reporting abuse (OR 5). We strongly support the requirement in
Standard OR 1 that all staff members report abuse immediately, and that they not reveal any
information related to a sexual abuse report to anyone other than those who need to know. In
particular, we support Juvenile Standard OR 1’s enhanced responsibilities to inform the juvenile
court, the victim’s parents or legal guardians, and/or the victim’s caseworker, and we agree with
the flexibility not to inform parents or legal guardians when the situation warrants that response
(e.g., when parental rights have been terminated or when reporting to the victim’s family may
place the victim in danger or otherwise interfere with treatment). We also support the
exhaustion provisions outlined in Standard RE 2, which will improve youths’ opportunity to seek
legal relief for sexual abuse and misconduct within the unfortunate constraints of the
exhaustion requirements of the Prison Litigation Reform Act of 1996 (PLRA).
Investigations (IN) and Discipline (DI) standards will ensure that all allegations of abuse,
including third party and anonymous reports, will be fully investigated, and that substantiated
allegations will be properly handled. We applaud these requirements, as failing to investigate
allegations sends a message that reporting is not worth the risk of retaliation, particularly when
there are no consequences for the abuser. We also commend NPREC for recognizing that
intervention decisions for residents who engage in sexual abuse must take into account the
social, sexual, emotional, and cognitive development of the resident and his or her mental
health status (Juvenile Standard DI 2).
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Medical and Mental Health Care (MM) standards recognize the critical role that medical and
mental health staff play in identifying a resident’s risk for victimization (MM 1). We support the
provisions protecting residents from inappropriate financial burdens by ensuring that access to
emergency and treatment services are available free of charge (MM 2), and requiring a proper
level of responsive services for victims that matches the level of care one would receive in the
community (MM 3).
Data Collection and Review (DC) and Audits (AU) standards properly require agencies to collect
data and use both incident based and aggregate data to improve the effectiveness of
prevention, detection, and response policies, practices, and training. These basic quality
assurance practices help agencies learn from past problems and prevent them in the future. In
addition, Standard AU 1 will strengthen the independent oversight of facilities and ensure
transparency.
We understand that some corrections officials have challenged specific NPREC standards regarding the
issues below. We offer our thoughts on these issues as they relate to the needs of children:
Direct Supervision: In any facility in which youth are held, they need appropriate supervision.
The recommended Standard PP 3 merely requires the “supervision necessary to protect
residents from sexual abuse.” Responsible, professional adults trained in the behaviors and
developmental needs of the adolescent population should be supervising young residents in
correctional settings. This protection is best accomplished through continuous, direct
supervision, as staff are more likely to identify signs of developing problems among youth when
they interact with them regularly. Accordingly, we encourage the Department to strengthen
Standard PP 3 to require direct, continuous supervision of youth. In addition, we understand
that there has been concern among the correctional community about the standards’
encouraged use of surveillance technology. We strongly believe that cameras are not sufficient
substitutes for direct supervision, and that facilities must be careful not to become dependent
on technology that separates youth and staff. The recommended standards neither require, nor
should they encourage, an overreliance on video surveillance. Standard PP 7 (PP 8 for Lockups)
asks jurisdictions to supplement their sexual abuse prevention plans with video monitoring and
other technology, and to conduct an annual study to determine the need for and feasibility of
incorporating new technology. We think this is a balanced approach to the use of video and
other technology, acknowledging its potential contributions while deferring to local expertise
and analysis. The flexible approach of Standard PP 7 (PP 8 for Lockups) would therefore impose
no significant expenses.
Cross Gender Supervision: We urge you to adopt Standard PP 4 (PP 5 for Lockups). Each of the
BJS’ inmate surveys has found that a significant percentage of sexual abuse is perpetrated by
staff members of the opposite sex. Rather than limiting cross gender supervision in any areas in
which inmates disrobe or perform bodily functions – which, consistent with international human
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rights standards, is the norm in most other western countries – the final recommended standard
only prohibits actually viewing inmates of the opposite gender who are nude or performing
bodily functions. It also minimizes the physical contact that staff have with youth of the opposite
gender by restricting cross gender frisks to emergency situations. These basic privacy measures
are especially important for youth, who are still developing physically and emotionally. This is a
reasonable compromise and accommodation of the hiring and promotion challenges faced by
correctional administrators seeking to provide equal employment opportunities, while still
protecting youth from harmful cross gender viewing and touching. On page 34 we offer
additional recommendations to improve this standard further.
Exhaustion Provisions: Standard RE 2 will improve youths’ opportunity to seek legal relief for
sexual abuse and misconduct within the unfortunate constraints of the exhaustion requirements
of the Prison Litigation Reform Act of 1996 (PLRA). Youth in secure facilities are particularly
vulnerable to abuse. However, they are also ill equipped to navigate complex administrative
rules and comply with short deadlines, given that they generally lack meaningful access to
counsel and other legal resources while detained or incarcerated. Although we believe that
youth should not fall within the scope of the PLRA, we recognize that such changes were beyond
the scope of the Commission’s work. The framework outlined in Standard RE 2, when applied in
conjunction with the reporting requirements outlined in Standard RE 1, strikes an adequate
balance between an agency’s legitimate interest in the opportunity to respond meaningfully to a
report of sexual abuse or misconduct and a youth’s interest in securing any legal relief to which
he or she is entitled.
Oversight: Without proper oversight, the standards cannot truly fulfill PREA’s mandate. The
recent sex abuse scandals in Texas and Indiana, where officials ignored complaints of
widespread staff sexual misconduct and/or retaliation, highlight the importance of external
scrutiny. Standard AU 1 mandates the essential components of independent oversight in a cost
efficient manner. In addition to providing needed accountability, this outside monitoring can
provide a credible, objective assessment of a facility’s safety, identifying problems that may be
more readily apparent to an independent auditor than to officials working within a system.
Existing oversight entities, such as an inspector general, a protection and advocacy organization,
or an ombudsman’s office, could be empowered to conduct these reviews. The costs that may
be incurred by the agency, in terms of financial impact as well as safety, will be outweighed by
the tremendous benefits this outside assessment can bring. By identifying areas of
noncompliance and addressing potential hazards proactively, dangerous practices will be
reformed, avoiding potential costs and reducing child sexual abuse.
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Part II. Recommendations for Improvements to the Standards
We believe that full implementation of the NPREC standards not only will reduce sexual abuse, but also
will help reduce other forms of physical abuse or gang violence that make detention and correctional
settings dangerous to staff and residents. Although we strongly support the standards, some important
changes are necessary to enhance the standards’ capacity to fulfill the mandate of the Prison Rape
Elimination Act and prevent sexual victimization of youth.
After a brief discussion of our rationale for each recommended change, we suggest textual changes to
the relevant Standards, with deletions of text struck through and additions of text in bold. Given the
consistency of language used across the four sets of standards, 4 coupled with the fact that youth are
held in each type of facility or correctional setting, our recommended changes are intended to apply to
all sets of standards unless noted otherwise. Finally, we request that the Department make the
corresponding adjustments to the checklists and discussion as necessary.
1. Employee, Volunteer, and Contractor Training
We applaud the Commission’s recognition in Standards TR 1 and TR 2 of the importance of training all
adults working with youth in facilities about the dynamics of sexual abuse in confinement and residents’
rights to be free from abuse and retaliation from reporting. However, we believe that Standard TR 1
should be tailored more to reflect the particular vulnerabilities of young people and the harms
associated with sexual abuse of children.
Specific Recommendations:
TR 1: Employee Training
We encourage the Department to add the following text to the list of topics in Standard TR 1 that must
be covered in staff trainings in all facilities that house young people:
1) adolescent development, including what is normal and acceptable behavior of adolescents in
the facility, how to distinguish between acceptable adolescent behavior and sexually
aggressive and dangerous behaviors, and the ways in which sexual victimization can affect
healthy development;
2) the prevalence of trauma and abuse histories among the youth population in juvenile/criminal
justice facilities, possible behaviors of youth with trauma and abuse histories, and appropriate
ways of responding to those behaviors;
3) the most current research on factors that make youth vulnerable to sexual abuse;
4
We use the term “resident” throughout, even though the terms may vary across the standards.
Page 11
4) the agency’s zero tolerance policy toward sexual abuse and the employee’s duty to report
misconduct, that failure to report will be investigated along with any allegations of sexual
abuse, and that staff who failed to report will be disciplined;
5) the age of consent laws and laws related to mandatory reporting in the jurisdiction; and
6) effective and appropriate communication with lesbian, gay, bisexual, transgender (LGBT), and
other gender nonconforming youth.
We acknowledge that the NPREC inserted an appendix with a list of recommended training topics, but
we feel that the above topics are too important to be merely discretionary.
2. Screening and Assessment by Medical and Mental Health Practitioners
While we are pleased to see the involvement of medical and mental health providers in screening and
response in the standards, we suggest some important adjustments. First, in Standards AP 1 and MM 1,
medical and mental health professionals are assigned the responsibility for asking youth about sensitive
information such as their sexual orientation and history of victimization. We agree with the choice to
have trained professionals ask such sensitive questions, but urge the Department to omit from the list
the questioning of youth about their history of engaging in sexual abuse. Asking a health care
professional to question a youth about prior offending behavior disrupts the caretaking relationship that
health care professionals are seeking to foster with youth. Such information can be gathered without
poisoning this important relationship from the first time youth and health care professionals meet.
Second, these standards should make clear that if medical and mental health professionals provide the
information they gather to staff to use for housing, work, and programming decisions, they must inform
youth of those purposes before eliciting information. Such informed consent is important because the
use of this information is outside the normal bounds of provider patient confidentiality.
Juvenile Standard AP 1: Obtaining Information about Residents
This standard should be amended to read:
“. . . Medical and mental health practitioners are the only staff permitted to talk with residents
to gather information about their sexual orientation or gender identity, prior sexual
victimization, history of engaging in sexual abuse , mental health status, and mental or physical
disabilities. If medical and mental health professionals provide the information that they
gather to staff to use for housing, work, and programming decisions, or to outside agencies for
the purposes of reporting sexual abuse, they must inform youth of those purposes before
eliciting that information. If the facility does not have . . .”
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The following should be removed from part (c) of the checklist:
“medical and mental health practitioners are the only staff permitted to talk with residents to
gather information about their . . . history of engaging in sexual abuse . . . .”
The following should be added to the checklist as item (d):
“Do medical and mental health professionals inform youth that the information they provide
may be shared with staff for housing, work, and programming purposes and with outside
agencies for the purposes of reporting sexual abuse before engaging in any questioning on
these topics if that information is used for those purposes?”
The following language should be added to the end of the discussion accompanying this standard:
“If medical and mental health professionals share any of the information gathered during this
intake process for the purposes of housing, work, or programming decisions, or for the
purposes of reporting sexual abuse, they must inform youth that the information may be
shared in that manner before engaging in any questioning on these topics. Such informed
consent is important because the use of this information is outside the normal bounds of
provider patient confidentiality.”
In January 2010, the Bureau of Justice Statistics released data on the sexual victimization of
youth in the juvenile justice system, estimating that more than 1 in 10 youth in state juvenile
facilities and large local facilities were sexually victimized by staff or youth in a 12 month period.
The discussion section that accompanies this standard should include information from this
study or, at a minimum, a reference to the study.5
Juvenile Standard MM 1: Medical and Mental Health Intake Screenings
The following language should be removed from the first sentence of this standard:
“[d]uring medical and mental health reception and intake screenings, qualified medical or men
tal health practitioners talk with residents to ascertain information regarding the resident’s sex
ual orientation, gender identity, prior sexual victimization or history of engaging in sexual abuse
(whether it occurred in an institutional setting or in the community) . . . .”
The following sentence should be added after the third sentence of this standard:
“If medical and mental health professionals provide the information that they gather to staff
to use for housing, work, and programming decisions, or to outside agencies for the purposes
of reporting sexual abuse, they must inform youth of those purposes before eliciting
information.”
5
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The following should be removed from part (a) of the checklist:
“prior sexual victimization or history of engaging in sexual abuse (whether it occurred in an
institutional setting or in the community)”
The following item should be added to the checklist as item (f):
“Do medical and mental health professionals inform youth that the information they provide
may be shared with staff for housing, work, and programming purposes and with outside
agencies for the purposes of reporting sexual abuse before engaging in any questioning on
these topics if that information is used for those purposes?”
The following language should be removed from the second sentence of the first paragraph of the
discussion:
“Before asking resident questions about prior sexual victimization, engaging in sexual abuse, or
the resident’s sexual orientation or gender identity, medical and/or mental health practitioners
should inform residents that they are not required to answer sensitive questions if they would
prefer not to.”
The following language should be added after the second sentence in the first paragraph of the
discussion:
“If medical and mental health professionals share any of the information gathered during this
intake process for the purposes of housing, work or programming decisions, or for the
purposes of reporting sexual abuse, they must inform youth that the information may be
shared in that manner before engaging in any questioning on these topics. Such informed
consent is important because the use of this information is outside the normal bounds of
provider patient confidentiality.”
The last sentence of the first paragraph of the discussion should be amended to read:
“Similarly, mental health practitioners should exercise their professional judgment to determine
whether a resident who discloses prior sexually abusive behavior without being prompted by a
question about such behavior, regardless of when it occurred, requires treatment such as
counseling or other therapeutic interventions.”
The following language should be removed from the third sentence in the fourth paragraph of the
discussion:
“[b]y having medical or mental health care practitioners ask questions about sexual orientation,
gender identity, prior sexual victimization, history of abusiveness, . . ..”
Page 14
3. Quality Assurance of Medical and Mental Health Care
Medical and mental health programs generally engage in quality assurance activities. Whether in the
MM standards or the DC standards, we believe that the standards should require facility based health
care programs to include compliance with these standards in their quality assurance activities. Requiring
quality improvement programs would help jurisdictions build the capacity necessary to comply with the
standards.
DC 3: Data Review for Corrective Action
The following statement should be added to this standard after the second sentence: “Medical
and mental health providers must include compliance with the standards as part of their
quality assurance activities, and the annual report should include data from those quality
assurance activities.”
The following item should be added to the checklist of this standard following item (d): “Do
medical and mental health providers include compliance with the standards as part of their
quality assurance activities?”
The following sentences should be added to the discussion of this standard: “Additionally,
because medical and mental health programs generally engage in quality assurance activities,
these standards require that facility based health care programs include compliance with the
standards as an explicit component of their quality assurance activities. Information on
quality assurance activities that relate to compliance with the standards should also be
included in the annual report.”
MM 1: Medical and Mental Health Intake Screenings
The following language should be added as an independent paragraph at the end of the
discussion: “If the agency does not already have a quality improvement program for medical
and mental health services, it should take steps to implement a structured quality
improvement program to assess its delivery of medical and mental health care services to
sexual abuse victims and subsequently introduce strategies for improvement where
weaknesses are identified.”
4. Emergency and Ongoing Medical and Mental Health Care
While standards MM 2 and MM 3 recognize the importance of providing emergency and ongoing
medical and mental health services to youth victims of sexual abuse, they fail to provide clear guidance
to facilities regarding access to prophylactic HIV treatment and emergency contraception as well as
options that must be available to a girl who has had a positive pregnancy test after abuse.
Page 15
Standard MM 2 fails to require facilities to provide victims of sexual abuse the option of medical care
that can help prevent HIV infection or pregnancy. The standard should specifically require that facilities
inform youth who become abuse victims about all of the options available to help prevent HIV infection
after abuse and offer all youth prophylactic treatment for HIV at the time of their first medical
examinations, if medically indicated. In addition, this standard should make clear that a girl who
accesses medical care within five days of vaginal rape must be given information about and access to
emergency contraception medication in order to maximize her ability to prevent pregnancy should she
wish to do so. We urge the Department to include provisions that would require immediate access to
unbiased and complete information regarding emergency HIV and pregnancy prevention options.
In the event that a girl becomes pregnant due to sexual abuse, standard MM 3 does not ensure that she
will have access to the pregnancy related services she needs. This standard should include explicit
mandatory requirements that pregnant girls receive unbiased, accurate information about all of their
options, including abortion and continuing the pregnancy, and that they receive the full range of
material support they would need in order to follow through with their decisions. A girl who has
become pregnant after being sexually assaulted by a staff member should never be forced to carry that
staff member’s child if she does not want to. Counseling should also be required to include truthful and
unbiased information about abortion, including information about the law regarding minors and
abortion in that state, procedures and abortion providers, and options for transportation and funding.
MM 2: Access to Emergency Medical and Mental Health Services
The following sentence should be added after the first sentence of this standard: “This includes
access to prophylactic treatment for HIV and emergency contraception when such treatment
is deemed by medical practitioners to be medically indicated and is lawful in the community.”
The following should be added as the last paragraph of the discussion of this standard:
“Facilities must inform youth abuse victims about all of the options available to help prevent
HIV infection after abuse and offer all youth prophylactic treatment for HIV at the time of
their first medical examinations, if medically indicated. In addition, a girl who accesses
medical care within five days of vaginal rape must be given information about and access to
emergency contraception medication in order to maximize her ability to prevent pregnancy
should she wish to do so.”
MM 3: Ongoing Medical and Mental Health Care for Sexual Abuse Victims and Abusers
The following should be added after the third sentence of this standard: “Victims who become
pregnant as the result of sexual abuse must receive unbiased, accurate information about all
of their options, including abortion and continuing the pregnancy, and must receive the full
range of material support they would need in order to follow through with their decision on
how to proceed.”
Page 16
The last sentence of the third paragraph of the discussion of this standard should read: “Victims
who have positive tests should shall receive counseling and should shall have access to all
pregnancy related medical services that are lawful in the community.”
The following sentences should be added at the end of the third paragraph of the discussion of
this standard: “Counseling must include information and the opportunity to discuss all
pregnancy outcome options. This includes truthful and unbiased information about abortion,
the law regarding minors and abortion in that state, procedures and abortion providers, and
options for transportation and funding. Counseling must include information to help her
determine if she wishes to continue the pregnancy, such as what would happen after
childbirth, whether she has the option to keep her child with her for a period of time after
birth, the feasibility of raising a child given the length and circumstances of her confinement,
and what arrangements can be made regarding placement with relatives, foster care, or
adoption.”
5. Assessment and Placement of Residents
Although Juvenile Standard AP 2 calls for all placement decisions to be made on an “individualized basis
with the goal of keeping all residents safe and free from sexual abuse,” we believe the juvenile
standards do not provide sufficient guidance on how to do this. Additional information should be
included in AP 1 to help facilities better identify youth who are vulnerable to sexual abuse, and AP 2
should be amended to ensure appropriate placement for youth identified in the screening process as
vulnerable because they are lesbian, gay, bisexual, or transgender (LGBT) or perceived to be or are
detained on a status offense. Changes are needed in the following five areas:
First, we believe that the Commission’s recommendation in its report that facilities “encourage all
residents during intake to tell staff if they fear being abused” 6 should be explicitly included in Juvenile
Standard AP 1. Knowing this information will help facilities to better identify vulnerable youth, develop
an appropriate safety plan, and protect youth who fear for their safety before they are actually abused.
This is especially important because there are no validated instruments to screen for a youth’s
vulnerability to sexual abuse, so a youth’s assessment of his or her own vulnerability is particularly
important to consider.
Second, although at this time there are no comprehensive studies identifying the characteristics of
youth who are at greatest risk of being victimized in juvenile facilities, the Commission has identified
some characteristics, including being LGBT, that may be associated with higher vulnerability to sexual
abuse. A recent BJS study of sexual victimization reported by youth, released after the publication of the
standards, highlights this heightened vulnerability for LGBT youth. The BJS survey found that more than
one in five non heterosexual youth reported sexual victimization involving another youth or facility
6
National Prison Rape Elimination Commission, Report 18 (June 2009), available at http://www.ncjrs.gov/pdffiles1/226680.pdf.
Page 17
staff. 7 And non heterosexual youth were almost ten times as likely as heterosexual youth to have
reported abuse by other residents while in custody (12.5 percent vs. 1.3 percent). 8 While the BJS survey
did not ask about gender identity, the Commission found that transgender girls are particularly
vulnerable to abuse, especially when housed with boys. 9 This danger is starkly illustrated by the
testimony before the Commission of Cyryna Pasion, a transgender girl, who, after being transferred
from the girls’ unit to a boys’ unit at the Hawaii Youth Correctional Facility, was sexually harassed,
abused, and threatened with rape on an almost daily basis. 10 Yet unlike Standard SC 1 for Adult Prisons
and Jails, Juvenile Standard AP 1 does not include transgender or intersex status or gender
nonconformance as a required factor for screening. In addition, a fall 2009 report by The Equity Project
found that professionals throughout the juvenile justice system routinely stereotype LGBT youth as
sexual predators, rather than as youth who are vulnerable to sexual abuse (see Appendix A). 11 We
recommend that, as in the adult standards, Juvenile Standard AP 1 clearly provide that sexual
orientation, gender identity, and gender nonconformance are indicators for risk of victimization.
Third, in order to ensure that employees gather the information necessary to make informed decisions
about placement at intake, Standard AP 1 should emphasize the need for and the benefit of consistent
criteria in the intake screening process. Facilities should adopt intake assessment policies that are
followed by all intake staff, so that a youth’s safety in housing, work, and educational programming is
not determined by which staff member completes the intake assessment process.
Fourth, the Commission rightly recognized that juvenile status offenders “are particularly vulnerable to
abuse or coercion by more experienced, sophisticated, and violent residents.” 12 Standard AP 2 should
make clear that individuals who are placed in a facility because of status offenses, or a violation of a
court order where the underlying offense is a status offense, should be housed separately from other
residents.
Fifth, to ensure individualized determinations for LGBT youth, Standard AP 2 should explicitly prohibit
housing, bed, and other assignments based solely on sexual orientation, gender identity, birth gender,
or genital status. Unfortunately, many juvenile facilities have segregated or isolated LGBT youth for their
own protection, presumably because it is easier for the facility to keep LGBT youth in isolation than it
would be to address the sexual violence that these youth face in the general population. In addition to
the harm resulting from the use of isolation discussed below, this practice essentially punishes LGBT
youth because they may be victimized by others and denies them access to the same privileges and
programs as other residents. This placement prohibition is included in the adult standards and is as
7
8
Id. Twelve percent of the youth in the study reported a sexual orientation other than heterosexual. Id.
9
National Prison Rape Elimination Commission, Report 18 (June 2009), available at http://www.ncjrs.gov/pdffiles1/226680.pdf.
10
Elimination of Prison Rape: Focus on Juveniles, Hearing Before the National Prison Rape Elimination Commission (June 1,
2006) (testimony of Cyryna Pasion).
11
The Equity Project, Hidden Injustice: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Courts 104 106 (2009),
available at http://www.equityproject.org/pdfs/hidden_injustice.pdf.
12
National Prison Rape Elimination Commission, Report 18 (June 2009), available at
http://www.ncjrs.gov/pdffiles1/226680.pdf.
Page 18
necessary, if not more necessary, in the juvenile context to ensure that LGBT youth and other gender
nonconforming residents are not placed in segregated units, in isolation, or, worse, in sex offender units
as sometimes occurs. Because inappropriate placement of transgender girls greatly increases their risk
of victimization, AP 2 also should explicitly require that facilities make an individualized determination
as to whether a transgender resident will be housed in a boys’ or girls’ facility.
Juvenile Standard AP 1: Obtaining Information about Residents
The second sentence of this standard should be amended to read: “At a minimum, employees
attempt to ascertain information about . . . sexual orientation, transgender or intersex status,
or gender nonconformance; current charges and offense history; age; level of emotional and
cognitive development; physical size/stature; mental illness or mental disabilities;
intellectual/developmental disabilities; physical disabilities; the resident’s own perception of
vulnerability; and any other specific information . . . .”
The following sentence should be added at the end of the standard: “Facilities should adopt
consistent criteria for screening residents at intake.”
The following should be added to the checklist of this standard as item (e): “Do staff use
consistent criteria when gathering information about residents during the intake process?”
The discussion of this standard should include the following statement after the first sentence of
the first paragraph: “In order to ensure that for each resident employees gather all relevant
information outlined in this standard during the intake process, facilities should adopt
consistent criteria for screening residents.”
Juvenile Standard AP 2: Placement of Residents
The following sentence should be included after the second sentence of the standard: “Lesbian,
gay, bisexual, transgender, or other gender nonconforming residents are not placed in
particular housing, bed, or other assignments solely on the basis of their sexual orientation,
genital status, birth gender, or gender identity. The facility makes individualized
determinations about whether a transgender resident will be housed in a boys’ or girls’
setting.”
The following sentence should be added to the end of the last paragraph of the discussion of
this standard: “Because transgender girls are at much greater risk of sexual abuse when
housed with male residents, facility staff should seriously consider whether placement in a
girls unit is most appropriate, taking into account the specific needs and vulnerabilities of the
individual transgender resident.”
Page 19
The following sentence should be added at the end of the standard: “Residents who are placed
in a facility because of status offenses, or a violation of a court order where the underlying
offense is a status offense, should be housed separately from other residents.”
The discussion of this standard should clearly reference the statutory language of the
Deinstitutionalization of Status Offenders (DSO) requirement [42 U.S.C. 5633(a)(11) and (a)(23)]
and additional rules, regulations, and guidance from the Office of Juvenile Justice and
Delinquency Prevention related to the requirement (see Appendices B and C).
6. Non Abusive Sexual Activity between Residents
Because the majority of residents in juvenile facilities are minors, we urge the Department to specify in
the juvenile standards the limited circumstances under which juvenile facilities can treat voluntary
sexual contact 13 between residents as abuse.
First, the juvenile standards should clarify that consensual sexual contact between residents who are
able to consent should not be treated as sexual abuse. Congress only intended PREA to address sexually
abusive behavior and not consensual sexual contact between residents. 14 Many residents of juvenile
facilities are old enough to consent to sexual activity with other similarly aged youth. In most states the
age of consent is 16, and in more than half the states, minors 14 or older can consent to sexual contact
15
with others who are close to them in age. In addition, some juvenile facilities house youth as old as
25. We urge the Department to distinguish clearly between sexual abuse, which should always fall
under the purview of these standards, and consensual sexual activities between residents, which a
facility may prohibit but should not treat as sexual abuse. This statement would help to distinguish
between the serious harms and trauma of sexual abuse that PREA is intended to prevent and a facility’s
interest in preventing sexual activity between residents. It would also ensure that facilities do not
further penalize and pathologize same sex sexual activity.
13
“Voluntary sexual contact” does not include sexual contact between residents involving force; threat of force; pressure or
coercion; offers of money, favors, special protection, or special treatment; or that for some other reason is unwilling.
14
While some facilities may prefer to treat all sexual conduct as sexual abuse so that facility staff do not have to discern
whether or not sexual conduct between residents was abusive, this concern is misplaced. The Standards require facility staff to
report any suspicion of sexual abuse, leaving it to trained investigators to determine whether the conduct constituted sexual
abuse for purposes of the PREA mandated responses.
15
According to the U.S. Department of Health and Human Services, in 2008 there were only three states where the age of
consent for sexual activity was 18, two states where it was 17, and ten states where it was 16. In these 15 states, minors
younger than the age of consent can never legally consent to sexual activity. In the remaining 35 states and the District of
Columbia, minors younger than the state’s age of consent can consent to sexual activity with similarly aged peers depending on
the age and relative age of the parties. In six of these states, minors have to be at least 15 years of age in order to consent to
sexual activity with similarly aged youth. In the remaining 29 states and the District of Columbia, the minimum age of consent
to sexual activity with a similarly aged peer varies from 10 to 14 years of age. In addition, the age difference allowed between
peers varies greatly by state, with some states only allowing for under age minors to consent when there is a two year age gap
between the parties while other states allow for up to a ten year age gap. See U.S. Department of Health and Human Services,
State Laws on Age Requirements and Sex (last revised August 6, 2008), available at
http://www.4parents.gov/sexrisky/teen_sex/statelaws_chart/statelaws_chart.html.
Page 20
We also urge the Department to include language in the standards that will further clarify what activities
do not fall under the definition of sexual abuse. Facilities sometimes use rules prohibiting physical and
sexual affection between residents by characterizing all touching or physical contact as sexual (e.g.,
hand holding, hugging, and braiding hair). We recommend that Standard DI 2 should explicitly state that
residents should never be disciplined for consensual affectionate acts with one another and the
Department should make clear that LGBT youth should not be subject to discriminatory discipline for
consensual affectionate acts because they are LGBT. To punish and stigmatize LGBT residents, whom
staff may assume are engaging in sexual conduct with other residents based solely on their gender
identity or sexual orientation, makes it harder for LGBT residents to report actual sexual abuse because
they may fear that staff members will punish them.
Specific Recommendation:
Juvenile Glossary: Resident on Resident Sexual Abuse
The definition of resident on resident sexual abuse in the juvenile standards should be
amended to read: “Encompasses all incidents of resident on resident sexually abusive contact
and resident on resident sexually abusive penetration. Consensual sexual contact or
penetration between residents who can legally consent to such activity is not sexual abuse.”
Second, the definition of resident on resident sexually abusive penetration requires all facilities to treat
any sexual penetration between residents as sexual abuse, regardless of whether the activity is
voluntary and the residents involved are legally able to consent. This definition conflicts with PREA’s
purpose. It also would undermine the effectiveness of the standards, as facilities would have to use
their limited resources to investigate and file reports for sexual activity that would not be considered
sexual abuse in any other setting. Defining sexual abuse in this way would require these institutions to
treat all residents involved in substantiated reports of non abusive sexual penetration the same as they
treat residents found to be perpetrators of actual sexual abuse. In addition to the tangible negative
consequences these youth would face, inappropriately labeling them as sexual abusers for engaging in
consensual sexual activity would cause them lasting emotional harm. The brunt of those harms would
fall disproportionately on LGBT youth. The Adult, Lockup, and Community Corrections Standards define
sexually abusive penetration to include only nonconsensual sexual penetration and penetration
involving an inmate who is unable to consent or refuse. We strongly urge the Department to use the
same definition for the juvenile standards.
Juvenile Glossary: Resident on Resident Sexually Abusive Penetration
The definition of resident on resident sexually abusive penetration in the juvenile standards
should read: “Penetration by a resident of another resident without the latter’s consent, or of
Page 21
a resident who is coerced into sexually abusive penetration by threats of violence, or a
resident who is unable to consent or refuse. The sexual acts included are. . .”
Third, the inclusion of the words “who is unable to consent or refuse” in the definition of resident on
resident sexually abusive contact requires juvenile facilities to treat some voluntary sexual activity
between residents as sexual abuse based on the age or relative ages of the youth involved. Because the
standards do not provide any guidance regarding how to handle these incidents, we are concerned that
LGBT youth will be targeted for harsh sanctions and even prosecutions for voluntary sexual contact with
similarly aged residents. A report by the Bureau of Justice Statistics found that 35 percent of all
substantiated incidents of sexual violence between residents in juvenile facilities in 2005 06 were
voluntary sexual contacts. 16 The findings of this report indicate that youth designated as perpetrators of
these voluntary sexual contacts often received harsher sanctions than those found to be perpetrators of
abusive sexual contacts. For example, “perpetrators” of voluntary sexual contact were more than twice
as likely to be placed in solitary confinement (25 percent) or be referred for prosecution (27 percent),
compared to perpetrators of abusive sexual contact (12 percent and 13 percent respectively). 17 Facilities
need additional guidance to prevent them from misapplying the standards in cases of voluntary sexual
contact between similarly aged youth.
We urge the Department to specify that the standards do not trump states’ age of consent laws.
Standard OR 1 should be amended so that it does not expand facilities’ mandatory reporting
requirements beyond the state’s definition of child abuse, since one third of states do not consider
statutory rape between youth to be child abuse. 18 In the majority of the remaining states, there are only
limited circumstances, such as very young age (e.g., under age 12) or large gap in age between the
parties, when mandated reporters are required to report statutory rape not involving a person
responsible for the care of the minor. 19 While in many states staff may not be mandated to report all
incidents of resident on resident sexual abuse, staff members in every state are mandated to report all
allegations or suspicions of staff on resident sexual abuse.
In addition, Standard DI 2 should discourage the use of harsh sanctions to punish similarly aged youth
who engage in voluntary, but legally non consensual, sexual contact. Specifically, facilities should not
treat these youth as sexually aggressive, violent, or deviant, or attempt to change their sexual
orientation. In addition, interventions for “victims” and “perpetrators” of voluntary sexual contact
should not be more punitive than those for sexual contact that is forced, aggressive, or violent. As noted
earlier, we urge the Department to require that facilities provide training on these topics.
16
Allen J. Beck et al., Bureau of Justice Statistics, Sexual Violence Reported by Juvenile Correctional Authorities, 2005 06 (July
2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/svrjca0506.pdf.
17
Id. at 11.
18
See U.S. Department of Health and Human Services, Statutory Rape: A Guide to State Laws and Reporting Requirements, 10
(2004), available at http://www.4parents.gov/sexrisky/statutoryrapelaws.pdf
19
See id. at 11.
Page 22
Juvenile Standard OR 1: Staff and Facility Head Reporting Duties
The following sentences should be added after the third sentence of this standard: “Staff and
medical and mental health practitioners should be familiar with the age of consent laws in
their states and understand that voluntary sexual contact between residents who can legally
consent to engage in such contact is not sexual abuse and should not be reported as child
abuse. Similarly, staff and medical and mental health practitioners also need to understand
the scope of their states’ mandatory reporting laws and whether or not voluntary sexual
activity between close in age residents who cannot legally consent is considered child abuse
and must be reported to the proper agency.”
Juvenile Standard DI 2: Interventions for Residents Who Engage in Sexual Abuse
The following sentence should be added after the last sentence of this standard: “In cases of
resident on resident sexual abuse involving similarly aged youth engaging in voluntary,
though legally non consensual sexual contact, facilities must take into account the voluntary
nature of this conduct when determining interventions.”
Add this to the discussion of the standard: “It is important that facilities do not
mischaracterize physical contact or touching between residents as sexual. Residents should
not be disciplined for having non sexual affectionate physical contact with other residents,
such as holding hands, hugging, or doing each other’s hair. This type of physical affection is
healthy adolescent expression. LGBT youth should not be prohibited from these activities
because of their sexual orientation or gender identity.”
TR 4: Specialized Training: Investigations
Investigators will have the responsibility in some cases of determining whether an act between
two residents represents sexual abuse or merely prohibited consensual activity. Investigators
should also be trained in: “the age of consent applicable in the jurisdiction where the facility is
located and how to distinguish between acceptable adolescent behavior and sexually
aggressive and dangerous behaviors.”
7. Isolation
Under the NPREC standards, facilities may isolate youth in their efforts to eliminate sexual abuse and
violence. However, the standards should not permit jurisdictions to expand the use of isolation, thus
relying on one dangerous practice when working to eliminate another. We recommend two sets of
modifications to prevent such a response.
Page 23
First, the standards must do more to highlight the dangers associated with isolation and clarify a
facility’s responsibility to keep children safe without resorting to that practice. Recent research captures
the serious dangers associated with isolation: a February 2009 report from the Office of Juvenile Justice
and Delinquency Prevention described a “strong relationship between juvenile suicide and room
confinement,” since approximately half the suicide victims were on room confinement status at the time
of death and died during waking hours (6 a.m. to 9 p.m.) 20 and a review of social science research on the
topic characterized isolation as “harmful.” 21 Additionally, the American Psychiatric Association has
stated that “[c]hildren should not be subjected to isolation, which is a form of punishment that is likely
to produce lasting psychiatric symptoms.” 22 However, the current standard on resident placement in
juvenile facilities (AP 2) does not explicitly mention those dangers, nor does it stress alternative ways of
protecting youth who may be particularly vulnerable to victimization. Instead, the standard permits
facilities to use isolation to protect youth, albeit as a last resort. This language may permit facilities to
adopt blanket policies to manage certain vulnerable populations, such as LGBT youth, through the use of
isolation. The standards need to be clear that facilities cannot rely on isolation to protect youth who are
vulnerable to victimization and abuse. We encourage the Department to include a much clearer
statement that the use of isolation endangers youth through an increased risk of suicide, and that
facilities must identify ways of meeting their constitutional obligation to protect the youth in their care
without resorting to that practice.
Second, the standards should bar the use of extended periods of isolation as punishment for residents
who engage in sexual abuse, given the dangers that are associated with the practice. The discussion that
accompanies Juvenile Standard DI 2 (Interventions for Residents Who Engage in Sexual Abuse)
recognizes that “isolation as a disciplinary sanction is harmful for all residents, especially residents with
mental illness.” Yet the standard itself does not include language prohibiting that practice, and the
discussion only “strongly discourage[s]” the use of extended isolation as a form of punishment. To be
sure, isolation can and does have a legitimate, short term purpose in juvenile facilities: as a last resort in
managing an imminent threat to the physical safety of youth and/or staff. However, the standard should
not expand isolation beyond that limited role, and should explicitly state that “no resident should be
subject to prolonged disciplinary isolation.”
20
Lindsay M. Hayes, National Center on Institutions and Alternatives, Juvenile Suicide in Confinement: A National Survey (Office
of Juvenile Justice and Delinquency Prevention Report February 2009), available at
http://www.ncjrs.gov/pdffiles1/ojjdp/213691.pdf.
21
Linda M. Finke, Use of Seclusion Is Not Evidence Based Practice, 14 J. Child & Adolescent Psychiatric Nursing 186 (2007).
22
Press Release, American Psychiatric Association, Incarcerated Juveniles Belong in Juvenile Facilities (Feb. 27, 2009), available
at http://www.psych.org/MainMenu/Newsroom/NewsReleases/2009NewsReleases/IncarceratedJuveniles.aspx.
Page 24
Juvenile Standard AP 2: Placement of Residents in Housing, Bed, Program, Education, and Work
Assignments
The final sentence of this standard should read as follows: “Facilities should not rely on the use
of isolation to keep youth safe. Facilities must identify ways of protecting youth in their care
from harm without resorting to the use of isolation.”
Checklist item (c) of this standard should be modified to read as follows: “Have facilities
identified ways to protect youth in their care from harm without resorting to the use of
isolation?”
The last paragraph of the discussion of this standard should include the following language:
“The use of isolation itself poses dangers to youth, including an increased risk of suicide, the
potential to aggravate existing mental health conditions, and the likelihood of producing
lasting psychiatric symptoms.”
Juvenile Standard DI 2: Interventions for Residents Who Engage in Sexual Abuse
The standard should include the following language before the final sentence: “No resident
should be subject to prolonged disciplinary isolation as punishment for engaging in resident
on resident sexual abuse.”
The last sentence in the second paragraph of the discussion of this standard should read as
follows: “As such, disciplining a resident with prolonged periods of isolation is potentially
dangerous to the resident and is prohibited by these standards.”
8. Youth in Adult Facilities
Adult facilities holding children face a dangerous dilemma – they must choose between housing youth in
the general adult population where they are at substantial risk of sexual abuse, or housing youth in
segregated settings in which isolation can cause or exacerbate mental health problems. Although the
Commission sought to protect vulnerable populations within adult facilities, we believe the adult
standards do not go far enough to address the specific hazards associated with housing youth in adult
facilities.
The Commission’s report found that “[m]ore than any other group of incarcerated persons, youth incar
cerated with adults are probably at the highest risk for sexual abuse.” 23 In addition, “[b]ecause of the
extreme risk of sexual victimization for youth in adult facilities, the Commission urges that individuals
23
National Prison Rape Elimination Commission, Report 18 (June 2009), available at
http://www.ncjrs.gov/pdffiles1/226680.pdf.
Page 25
under the age of 18 be held separately from the general population.” 24 Despite the acknowledgment
that youth in adult facilities are at the highest risk, no standard within the adult standards specifically
requires the separation of youth from adults, and the standards themselves fail to address the increased
risk of harm that youth face in adult facilities. 25
Research shows that youth are not safe in adult facilities. According to BJS statistics, youth under the
age of 18 represented 21 percent of all substantiated victims of inmate on inmate sexual violence in jails
in 2005, and 13 percent in 2006 – surprisingly high since only one percent of jail inmates are juveniles. 26
The situation for youth held in adult prisons is no less dire; Deborah LaBelle, an attorney working with
over 400 youth serving sentences of life without possibility of parole testified before the Commission
that 80 percent of those youth had been sexually assaulted within the first year of their incarceration. 27
Many additional examples of sexual abuse against youth in adult facilities were brought to light at public
hearings of the Commission, including the stories of T.J. Parsell, a 17 year old boy raped within 24 hours
after entering an adult prison 28 ; Rodney Hulin, a 16 year old boy who was raped almost immediately
after entering an adult prison and committed suicide after being in the facility for three months 29 ; and
Chino Hardin, a youth who testified about her experiences of sexual abuse when incarcerated at 15
years of age in an adult women’s prison. 30
Too many children incarcerated in jails and prisons across the United States are currently at risk, and will
continue to be at risk of sexual abuse or suicide, unless the standards are strengthened. An estimated
200,000 youth are tried, sentenced, or incarcerated as adults every year. 31 Most of these youth are
charged with non violent offenses. 32 It is estimated that on any given day more than 11,000 children are
incarcerated in adult facilities, nearly 7,500 young people are in adult jails, and more than 3,600 young
people are in adult prisons. 33 Unfortunately, the dangers that youth face in adult facilities result in
24
Id. at 19.
The discussion to Adult Standard SC 2 notes: “If an agency is responsible for the confinement of individuals under the age of
18, a strong effort should be made to house these individuals separately from the general population. Although young inmates
in general may be victimized more often, inmates under the age of 18 are not fully emotionally or physically developed and
therefore may be particularly susceptible to abuse if housed with older inmates.”
26
Beck, A.J., Harrison, P.M., Adams, D.B. (2007, August). Sexual Violence Reported by Correctional Authorities, 2006.
Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Beck, A. J., Harrison, P.M.,
Adams, D.B. (2007, August). Sexual Violence Reported by Correctional Authorities, 2005. Washington, DC: U.S. Department of
Justice, Office of Justice Programs, Bureau of Justice Statistics.
27
Deborah LaBelle, Testimony before the National Prison Rape Elimination Commission, At Risk: Sexual Abuse and Vulnerable
Groups Behind Bars 33 (Aug. 19, 2005).
28
T.J. Parsell, Testimony before the National Prison Rape Elimination Commission, At Risk: Sexual Abuse and Vulnerable Groups
Behind Bars 33 (Aug. 13, 2005); see also T.J. Parsell, Fish: A Memoir of a Boy in a Man’s Prison (2006).
29
Linda Bruntmyer, Testimony before the National Prison Rape Elimination Commission, The Cost of Victimization: Why Our
Nation Must Confront Prison Rape (June 14, 2005); see also Human Rights Watch, No Escape 61 (2001).
30
Chino Hardin, Testimony before the National Prison Rape Elimination Commission, Elimination of Prison Rape: Focus on
Juveniles 4 (June 1, 2005).
31
Jennifer L. Woolard et al., Juveniles within Adult Correctional Settings: Legal Pathways and Developmental Considerations, 4
Int’l J. Forensic Mental Health 18 (2005); Coalition for Juvenile Justice, Childhood on Trial: The Failure of Trying and Sentencing
Youth in Adult Criminal Court (2005).
32
Campaign for Youth Justice, The Consequences Aren’t Minor: The Impact of Trying Youth as Adults and Strategies for Reform
(Mar. 2007).
33
Campaign for Youth Justice, Jailing Juveniles (Nov. 2007); Heather C. West et al., Bureau of Justice Statistics, Prison Inmates at
Midyear 2008 (Mar. 2009).
25
Page 26
some youth never making it out of these facilities – youth are 36 times more likely to commit suicide in
an adult jail than in a juvenile detention facility. 34 Research shows that for youth held in adult jails, as
many as one half of these youth will be sent back to the juvenile justice system or not be convicted.
Most of these youth will have spent at least one month in an adult jail and one in five of these youth will
have spent over six months in an adult jail. 35 The majority of youth held in adult prisons are also likely to
be released in early adulthood. A recent OJJDP report noted that 78 percent of youth convicted as
adults were released from prison before their 21st birthday, and 95 percent were released before their
25th birthday. 36 There is no justification for subjecting these youth to the dangers of adult facilities
when they could be housed in more appropriate juvenile facilities.
Not only does confining youth with an adult and more experienced criminal population create major
safety concerns for youth, but studies also show that this practice has no deterrent value and has failed
to improve public safety. For example, recent literature reviews by both the Centers for Disease Control
and Prevention (CDC) Task Force on Community Preventive Services and the Office of Juvenile Justice
and Delinquency Prevention found that trying youth as adults is harmful to public safety; juveniles
transferred from the juvenile court system to the criminal system are approximately 34 percent more
likely than youth retained in the juvenile court system to be rearrested for violent or other crimes.37
In light of the evidence that youth cannot be kept safe in adult facilities and the research demonstrating
that keeping youth in adult facilities is harmful to the youth and to public safety, we recommend that
the U.S. Department of Justice make three types of modifications to the standards to ensure that youth
are fully protected from sexual victimization in adult facilities.
First, the adult standards should be modified to require removal of youth from adult jails and prisons
altogether. This change would be consistent with existing laws and policies used by the Federal Bureau
of Prisons that prohibit the placement of youth in adult jails and prisons in federal custody. The Federal
Juvenile Justice and Delinquency Prevention Act38 (not to be confused with the Juvenile Justice and
Delinquency Prevention Act 39 that applies to the States, which is discussed below) specifies the
requirements for incarcerating a juvenile who has not attained his or her 18th birthday and any juvenile
sentenced under the Federal Act as a juvenile delinquent. Title 18 U.S.C. § 5039 states:
"No juvenile committed ... to the custody of the Attorney General may be placed or retained in
an adult jail or correctional institution in which he has regular contact with adults incarcerated
because they have been convicted of a crime or are awaiting trial on criminal charges."
34
Angela McGowan et al., Effects on Violence and Laws and Policies Facilitating the Transfer of Juveniles from the Juvenile
Justice System to the Adult Justice System: A Systematic Review, 32 Am. J. Preventive Med. S7 (2007).
35
Campaign for Youth Justice, Jailing Juveniles: The Dangers of Incarcerating Youth in Adult Jails in America (Nov. 2007).
36
Richard E. Redding, Juvenile transfer laws: An effective deterrent to delinquency? (Washington, D.C.: U.S. Department of
Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention) (Aug. 2008).
37
Id.; Centers for Disease Control and Prevention, Effects on Violence of Laws and Policies Facilitating
the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on
Community Preventive Services, MMWR 2007; 56 (No. RR 9) (2007).
38
18 U.S.C. §§ 5031 through 5042.
39
42 U.S.C. §§ 5601 through 5681.
Page 27
Federal Bureau of Prisons Program Statement 5216.05 provides additional procedures required for
handling youth under the age of 18: “A juvenile who has not attained his or her 18th birthday is to be
placed in a juvenile facility which has an appropriate level of programming and security.” 40
Removing youth from adult facilities is a recommendation with strong support from diverse
organizations ranging from the American Public Health Association to the National Association of County
Officials (NACo). Appendix D includes a compilation of policy statements from eighteen national
organizations demonstrating the need to keep youth out of adult facilities or, at a minimum, separated
from other adults. Adult and juvenile correctional professionals including the Association of State
Correctional Administrators, American Correctional Association, Council of Juvenile Correctional
Administrators, American Jail Association, and the National Juvenile Detention Association, all have
long standing policies demonstrating their endorsement of keeping children out of adult facilities.
The best way to modify the adult standards to incorporate this prohibition would involve making either
of the following changes:
PP 2: Contracting with Facilities for the Confinement of Residents: Add an additional
requirement to PP 2 that adult correctional agencies contract with facilities run by juvenile
justice agencies to house their youth populations. Suggested language for the modified standard
is: “The public correctional agency contracts with other juvenile facilities with appropriate
levels of programming and security to house individuals under the age of 18.” The discussion
of this standard should clearly reference the statutory language of the Federal Juvenile Justice
and Delinquency Prevention Act (18 U.S.C. 5039) and related policies of the Federal Bureau of
Prisons. In addition, the discussion of this standard should clearly reference the statutory
language and related guidance of the Juvenile Justice and Delinquency Prevention Act as
discussed below.
Create a new standard requiring the removal of youth from adult facilities.
Suggested language for the new standard is: "No youth under the age of 18 may be placed or
retained in an adult jail or other adult correctional institution in which he or she has contact
with other adults incarcerated because they have been convicted of a crime or are awaiting
trial on criminal charges." The discussion for a new standard should also reference the
applicable legal requirements of both the Federal Juvenile Justice and Delinquency Prevention
Act and the Juvenile Justice and Delinquency Prevention Act that applies to the States.
Second, we recommend that the standards explicitly reference the existing legal requirements of the
Juvenile Justice and Delinquency Prevention Act (JJDPA)41 that are attached in Appendices B and C.
Although we believe that youth should be removed from adult jails and prisons, as a practical matter
youth may need to be held in adult jails temporarily until transport to a juvenile facility can take place.
40
41
Federal Bureau of Prison Program Statement 5216.05.
42 U.S.C. §§ 5601 through 5681.
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In contrast, there is no justification to allow youth to be held in adult prisons. The Juvenile Justice and
Delinquency Prevention Act of 1974 (the act that applies to the States) has two core protections that
help protect youth housed in adult jails. The “jail removal” core protection currently protects youth who
are under the jurisdiction of the juvenile justice system by prohibiting these youth from being held in
adult jails and lockups except in very limited circumstances. In these limited circumstances, the “sight
and sound” core protection limits the contact these youth have with adult inmates. While these core
protections have worked to keep many children out of adult jails for the past 30 years, the current JJDPA
does not apply to youth under the jurisdiction of the adult criminal court. We believe these core
protections ought to apply to youth under the jurisdiction of the adult criminal court; the JJDPA is
currently due for reauthorization, and legislative proposals currently being considered, such as Senate
Bill 678, would extend these core protections to youth in the adult criminal justice system. A recent
Department of Justice views letter regarding Senate Bill 678 demonstrates the Department’s support for
these legislative proposals as well.42 It is uncertain whether the reauthorization of the JJDPA will occur
prior to the issuance of final regulations on PREA. Regardless, we believe the standards implementing
PREA should prohibit the placement of youth under the age of 18 in adult facilities in order to protect
them from sexual victimization and explicitly incorporate the very limited circumstances in existing law
that limits when youth can be housed in adult jails.
In the discussion sections of the applicable standards in both the Adult and Lockup Standards,
additions should be made to clearly reference the prohibition and the specific exceptions to
ensure that youth are not housed in adult jails, prisons, or lockups outside of the narrow
allowable circumstances mentioned in the JJDPA [42 U.S.C. § 5633(a)(12) and 42 U.S.C.
§ 5633(a)(13)].
Finally, while children should never be held in adult facilities, to the extent that they are, the child
specific protections in the juvenile facility standards should be incorporated equally into the adult
standards.
There are many ways to modify the adult standards to ensure that the needs of children are fully
incorporated, including:
Directly incorporating all child specific language from the juvenile standards into the adult
standards;
Drafting a supplemental set of standards, similar to the set of standards designed for facilities
with immigration detainees; or
42
Letter from Assistant Attorney General Ronald Weich to Senate Judiciary Committee Chairman Patrick J. Leahy (Apr. 15,
2010), available at http://judiciary.senate.gov/resources/documents/111thCongress/upload/041510DOJViewsLetterJJDPA.pdf.
Page 29
Creating a new standard which would require that all adult facilities housing youth under the
age of 18 maintain compliance with the juvenile standards as well.
9. Limited English Proficient (LEP) Children
Children who do not speak English should receive the same protections and supports under the
standards as children who do speak English. Some, but not all, of the current standards do include
provisions that address the needs of residents who are limited English proficient (LEP). For example,
Standard PP 5 (Accommodating Residents with Special Needs) requires facilities to ensure that LEP
residents understand sexual misconduct policies and can directly report abuse or victimization.
However, other standards do not explicitly require facilities to ensure that LEP residents are able to
communicate with staff during investigation, medical and mental health care, and the provision of other
supportive services that might be necessary after a youth is victimized. Standard RP 1 requires that a
juvenile facility make a “victim advocate” available to youth during forensic medical exams. This
standard recognizes that “the forensic medical exam is an important element of both evidence
collection and treatment for recent sexual abuse victims” and that “undergoing this exam for the first
time after being sexually abused may feel like a particularly invasive and traumatizing experience.” 43
We encourage the Department to add language to this standard that would require jurisdictions to
ensure that victim advocates and others providing response services to youth are able to communicate
with LEP residents at all stages of the process, either through direct communication in the youth’s
primary language or through translation.
Standard RP 2 requires that an agency enter, maintain, or attempt to enter agreements with community
service providers that are able to (1) provide residents with emotional support services related to sexual
abuse and (2) help victims of sexual abuse during their transition from incarceration to the community.
This standard should require agencies to maintain or attempt to enter into agreements with community
service providers with a language capability for any language that comes up regularly at a facility.
Additionally, given the importance of ensuring that residents with limited English proficiency receive the
same protections as youth who speak English, we would encourage the Department to use the term
“linguistic competence” alongside “cultural competence,” and to include requirements of cultural and
linguistic competence in the standards relating to resident education (TR 3), medical and mental health
intake screenings and ongoing care (MM 1 and MM 3), and the provision of services to youth victims
and their families through a facility’s coordinated response to an incident of sexual abuse (OR 4). As
employees need to be able to communicate effectively and professionally with all residents, the
standards should require that facilities train employees on how to communicate with residents with
limited English proficiency (TR 1).
43
See Standard RP 1 (Evidence Protocol and Forensic Medical Exams).
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Glossary: Cultural and Linguistic Competence
The term “cultural competence” should be broadened to “cultural and linguistic competence,”
or “linguistic competence” should be added to the glossary.
AP 1: Obtaining Information about Residents
Identifying LEP residents at intake can help ensure that facilities are equipped to meet the needs
of those youth early on. The standard, checklist, and discussion should add “level of English
proficiency” to the list of key information that should be gathered during an intake assessment.
RP 1: Evidence Protocol and Forensic Medical Exams
The final sentence of the standard should read: “The facility makes available a victim advocate
to accompany the victim through the forensic medical exam process and ensures that the
victim advocate can communicate with the resident throughout the investigation, medical and
mental health care, and other supportive services that may be necessary after a youth is
victimized.”
RP 2: Agreements with Outside Public Entities and Community Service Providers
The following item should be added to the checklist for this standard: “Does the agency
maintain or attempt to enter into agreements with community service providers with a
language capability for any language other than English that comes up regularly at a facility?”
RE 3: Resident Access to Outside Support Services and Legal Representation
The following item should be added to the checklist for this standard: “Does the facility provide
the current mailing addresses and telephone numbers, including toll free hotline numbers, of
national victim advocacy or rape crisis organizations with a language capability for any
language other than English that comes up regularly at a facility?”
TR 1: Employee Training
The following should be added to the end of the second sentence in the first paragraph of the
discussion of this standard: “and residents with limited English proficiency.”
TR 3: Resident Education
The last sentence of this standard should be amended to read: “The agency provides culturally
competent resident education accessible to all residents, including those who are LEP, deaf,
visually impaired, or otherwise disabled as well as inmates who have limited reading skills.”
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MM 1: Medical and Mental Health Intake Screenings
The second sentence of this standard should be modified to read: “Such conversations are
conducted in a culturally and linguistically competent manner that the medical or mental
health practitioner deems appropriate for each resident in light of the resident’s age and
developmental status according to the practitioner’s professional judgment and use inclusive
language that avoids implicit assumptions about a young person’s sexual orientation.”
MM 3: Ongoing Medical and Mental Health Care for Sexual Abuse Victims and Abusers
The last sentence of this standard should be amended to read: “The facility conducts a mental
health evaluation of all known abusers and provides culturally and linguistically competent
treatment, as deemed necessary by qualified mental health practitioners.”
OR 4: Coordinated Response
The following should be added at the end of this standard: “Efforts are made to provide
culturally and linguistically competent services to youth victims and their families.”
10. Staff Hiring and Qualifications
The current standard on staff hiring and qualifications (PP 6) provides that facilities must “run criminal
background checks for all applicants and employees being considered for promotion . . . .” However, it
does not include any requirement to conduct regular criminal record checks in between those time
points. As written, the standard would permit a staff member who engages in abusive behavior one
month after initial employment to continue his or her employment at the facility. Only when that staff
member came up for promotion, which could be years in the future or not at all, would the danger to
youth be identified. Similarly, under this standard an agency may not “promote anyone who has
engaged in sexual abuse in an institutional setting or who has engaged in sexual activity in the
community facilitated by force, the threat of force, or coercion.” As written, the standard would bar
promotion for a staff member who engaged in sexual abuse; however, it would not clearly bar that
person from continuing to work with children in the facility.
The wording in the current standard specifically addresses acts of sexual abuse committed by staff or
potential staff. However, the standard does not reference other relevant behavior that may have a
strong bearing on a staff member’s ability to prevent and report sexual misconduct, such as a failure to
protect youth from harm. Additionally, the standard omits any reference to civil protection orders,
which may provide useful information regarding a staff member’s history of or propensity to engage in
sexual abuse. This standard should also include language that encourages agencies to make the
prevention of sexual abuse and victimization an affirmative goal of their hiring and promotion practices.
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PP 6: Hiring and Promotion Decisions
The following statement should be added before the first sentence of this standard: “The
agency hires, retains, and promotes staff members who are committed to PREA’s goals and
are qualified by experience, education, and background to protect children.”
The following statement should be added after the first sentence of this standard: “Additionally,
agencies must remove staff from contact with youth at the facility if such information is
uncovered after they have been hired, to the extent permitted by law or collective bargaining
agreements.”
The second sentence of this standard should be modified to include the bolded language below:
“Consistent with Federal, State, and local law, the agency makes its best effort to contact all
prior institutional employers for information on substantiated allegations of sexual abuse; must
run criminal background checks for all applicants and employees being considered for
promotion; must conduct annual criminal background checks for current employees; and must
examine and carefully weigh any history of criminal activity at work or in the community,
including convictions for domestic violence, stalking, child abuse and sex offenses, as well as
civil protection orders issued against the applicant, or any other previous conduct that
suggests a failure to protect children or a likelihood of failing to protect them, including by
sexually abusing them or failing to prevent sexual abuse by others.”
The checklist of this standard should add the following as a new item following item (c): “Does
the agency conduct annual criminal background checks for employees who are not eligible for
promotion?”
The checklist of this standard should add the following two items to the list of relevant
behaviors in item (d): “Any civil protection order issued against staff” and “Any other previous
conduct suggesting a failure to protect children.”
The following sentence should be added at the end of the first paragraph of the discussion of
this standard: “In order to ensure a safe environment for youth and staff, agencies must
remove staff from positions of contact with youth upon learning that an individual has
engaged in sexual abuse in an institutional setting or has engaged in sexual activity facilitated
by force, the threat of force, or coercion, to the extent permitted by law or collective
bargaining agreements.”
The second paragraph of the discussion of this standard should include the following statement
after the first sentence: “Additionally, agencies must conduct annual criminal background
checks for current employees who are not eligible for promotion in order to ensure that staff
have not engaged in abusive behavior since they were hired.”
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11. Cross Gender Viewing, Searches, and Supervision
As stated above, we strongly support the proposed limitations on cross gender searches and viewing in
Standard PP 4. However, the standard should prohibit one on one cross gender supervision and should
provide guidance regarding how this standard applies to transgender and intersex residents.
First, we are concerned that the standard does not provide sufficient protection for residents because it
does not prohibit one on one cross gender supervision. The recent BJS survey of juvenile facility
residents found that more than 95 percent of sexual abuse by staff is perpetrated by staff members of
the opposite gender, highlighting the importance of minimizing the opportunities that staff have with
residents unsupervised. 44 To reduce staff on resident sexual abuse, agencies must preclude staff
members from being one on one with residents of the opposite gender when out of sight of cameras,
other staff, or other residents, including during transportation of residents outside the facility.
Second, to adequately address the safety concerns of transgender and intersex residents and protect
their privacy and dignity, we strongly urge the Department to include specific guidance on how facilities
should apply the restrictions on cross gender searches and viewing to transgender and intersex
residents. At present, transgender girls, in particular, are frequently searched by male staff,
notwithstanding having breasts and a feminine appearance. This practice invites abuse. Reports from
human rights organizations and testimony before the Commission show that transgender women and
girls are frequently targeted for unnecessary and traumatic frisks and strip searches, and that these
searches can be excuses for, and precursors to, sexual abuse. 45
Transgender and intersex residents should be asked to specify the gender of staff they feel can most
safely search them. This pragmatic approach is currently used by the New York State Office of Children
and Family Services in all juvenile facilities, the District of Columbia Police Department, and numerous
jurisdictions in Canada and the United Kingdom. 46 If there must be a general presumption about who
should conduct searches and viewing of transgender and intersex residents, we recommend that these
duties be performed by female facility staff, except in the case of emergency.
Searches or examinations of residents for the sole purpose of determining genital status should also be
prohibited. Such searches are inherently traumatic for transgender and intersex residents and present a
serious potential for abuse, even under the limited circumstances permitted in the Commission’s
standards. Juvenile facilities should be conducting thorough medical examinations for every resident as
part of the intake process. Any question about a resident’s genital status can be addressed during these
44
Beck et al., Sexual Victimization in Juvenile Facilities, supra note 1, at 13.
See Amnesty International, Stonewalled: Police abuse and misconduct against lesbian, gay, bisexual and transgender people
in the US 54 58 (2005), available at http://www.amnestyusa.org/outfront/stonewalled/report.pdf; Sylvia Rivera Law Project,
“It’s War in Here”: A Report on the Treatment of Transgender & Intersex People in New York State Men’s Prisons 29 31 (2007),
available at http://srlp.org/resources/pubs/warinhere.
46
Police departments in several Canadian jurisdictions, including Toronto, Vancouver, and Edmonton, have adopted this policy
following a 2006 ruling by the Ontario Human Rights Commission. See Forrester v. Peele (Regional Municipality), [2006]
O.H.R.T.D. No. 13; 2006 HRTO 13.
45
Page 34
routine medical examinations rather than in the context of an examination with the sole purpose of
determining a resident’s genital status.
PP 4: Limits to Cross Gender Viewing and Searches
The second sentence of this standard should be amended to read: “Except in the case of
emergency or other extraordinary or unforeseen circumstances, the facility restricts non
medical staff from viewing residents of the opposite gender who are nude or performing bodily
functions and similarly restricts cross gender pat down searches and cross gender one on one
supervision of residents, including during transportation of residents outside the facility.”
The last sentence of this standard should be removed and replaced with the following:
“Requests by transgender and intersex residents to be searched by either male or female staff
are accommodated whenever possible. Medical examinations or other searches of
transgender and intersex residents solely to determine their genital status should not be
conducted.”
The third and fourth sentences of the fifth paragraph of the discussion of this standard should
be replaced with the following: “To protect the privacy and dignity of transgender and intersex
residents, this standard prohibits medical examinations or searches to determine genital
status. Any question about a resident’s genital status is most appropriately addressed during
the routine initial medical screening that all residents go through, rather than in the context of
an examination with the sole purpose of determining a resident’s genital status.”
12. Miscellaneous
Below are several additional recommendations we believe would help to prevent, detect, respond, and
monitor the sexual abuse of children in correctional settings.
INTERVENTIONS FOR RESIDENTS WHO ENGAGE IN SEXUAL CONDUCT WITH STAFF
Findings from the most recent BJS study demonstrate that the overwhelming majority of youth are
victimized by facility staff. Of these youth, 4.3 percent reported that they experienced sexual contact as
a result of force or coercion, compared to 6.4 percent who reported sexual contact without force or
coercion. 47 In all situations, youth should not be punished for sexual activity with staff members. Even
where youth may appear to have consented to sexual activity, they remain under the power and control
of staff.
47
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DI 2: Interventions for Residents Who Engage in Sexual Abuse
The discussion should include the following language: “Residents should never be subject to
disciplinary sanctions for sexual activity with staff members. Even in situations where
residents appear to have consented to sexual activity, they remain under the power and
control of staff.”
ACCESS TO WRITTEN MATERIALS
Standard RE 1 requires facilities to “provide multiple internal ways for residents to report easily,
privately and securely sexual abuse, retaliation by other residents or staff for reporting sexual abuse,
and staff neglect or violation of responsibilities that may have contributed to an incident of sexual
abuse.” For youth in secure facilities, writing complaints is one of the ways youth can report sexual
abuse or victimization. However, given that secure juvenile facilities are highly regulated environments,
youth may not have ready access to paper and writing implements. The standards should ensure that
youth have access to materials so they are able to report sexual abuse in writing.
RE 1: Resident Reporting
The checklist of this standard should include the following as a new item following item (b):
“Does the facility provide opportunities for residents to have access to the paper and writing
implements necessary to register a written complaint?”
The following statement should be inserted at the end of the second paragraph of the
discussion of this standard: “Given that secure facilities are highly regulated environments,
facilities must ensure that residents have access to the paper and writing implements
necessary to register a written complaint.”
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FAMILY MEMBERS AS THIRD PARTY REPORTERS
Given that youth may confide in family members outside of a secure facility after being sexually abused
or victimized, facilities and agencies must provide clear channels through which relatives can relay those
reports.
RE 4: Third Party Reporting
The first sentence of this standard should be modified to read as follows: “The facility receives
and investigates all third party reports of sexual abuse, including from family members of
youth, and refers all third party reports of abuse to the designated State or local services agency
with the authority to conduct investigations into allegations of sexual abuse involving child
victims (IN 1 and RP 4).”
The following statement should be inserted after the first sentence of the discussion of this
standard: “In particular, facilities should ensure that parents and guardians are aware of how
to report sexual abuse, given the possibility that youth will confide in family members rather
than facility staff.”
CROSS FACILITY REPORTING
Clarification is needed for reporting requirements when a facility receives an allegation that a resident
was abused at a different facility. Someone reading Standard OR 2 might be confused as to whether
they are also bound by Standard OR 1, and assume that he had completed his responsibilities by
notifying in writing the head of the facility where the alleged abuse occurred. Standard OR 2 should be
modified to prevent confusion and ensure that staff complete child abuse reports and other
requirements expeditiously even when residents are no longer in the facility where the abuse occurred.
OR 2: Reporting to Other Confinement Facilities
The following should be added to the beginning of the first sentence of this standard: “In
addition to following the reporting duties outlined in Standard OR 1. . .”
DEFINITIONS OF THE TERMS TRANSGENDER AND GENDER NONCONFORMING
We strongly support including definitions for “transgender” and “gender nonconforming” in the
standards to ensure that these terms are understood by facility staff. We suggest the following revised
definitions to help distinguish between the two terms:
Page 37
Glossary: Transgender
The definition for “transgender” should be amended to read: “A term describing persons whose
gender identity and/or expression do not conform correspond to the gender roles sex assigned
to them at birth.”
Glossary: Gender Nonconforming
The definition for “gender nonconforming” should be amended to read: “A term describing
persons whose gender identity and/or gender expression does not conform to gender
stereotypes generally associated with their birth sex, but who do not personally identify as
transgender.”
Page 38
Part III. Response to Questions in the Advance Notice of Proposed
Rulemaking
1. What would be the implications of referring to “sexual abuse” as opposed to “rape” in the
Department’s consideration of the Commission’s proposed national standards?
We encourage the Department to use the term “sexual abuse” rather than “rape” in promulgating its
national standards because the term “sexual abuse” is more commonly understood to encompass the
range of victimizing behaviors Congress intended to address in PREA. In order to establish a zero
tolerance culture to prevent prison rape, PREA recognizes that prison systems must address a broad
range of sexually abusive acts, which Congress included in its definition of “rape.” However, the term
“rape” is commonly understood in accordance with its use in criminal law. 48 The criteria for criminal
rape vary by state, but are generally narrowly defined as acts of forcible sexual intercourse. Because
this common understanding is not inclusive of all of the sexually abusive acts included in the definition
of rape found in PREA, practitioners responsible for implementing PREA might misunderstand the intent
of the law and work just on preventing forcible sexual intercourse, rather than the full range of conduct
intended to be addressed. As revealed in the statute’s definitions, Congress intended much more
comprehensive treatment of this problem than the terms would suggest. The term “sexual abuse” is
preferable, as it is more commonly understood to be an umbrella term that includes the broad range of
sexually abusive acts covered by PREA. 49
The Department is not required to use the exact language of a statute when promulgating regulations.
Regulations elaborate on the broad language of a statute, which often requires an agency to include
more detail in order for the statute to be effectuated. Therefore, the Department’s use of the term
“sexual abuse” instead of “rape” is well within its purview; it provides the necessary detail to help
juvenile and criminal justice professionals implementing PREA to fully understand its scope and fulfill
Congress’ goal.
In addition, in order to carry out Congress’ intent to make prevention of sexual abuse a top priority in
every prison system, we believe the Department should adopt the Commission’s comprehensive
definition of sexual abuse. The Commission’s definition of sexual abuse adds important elements
Congress did not include: staff on resident voyeurism, staff on resident indecent exposure, and sexual
harassment (resident on resident and staff on resident). These behaviors constitute sexually abusive
conduct that is unlawful in most states. In addition, victims of voyeurism, indecent exposure, and sexual
harassment can also experience post traumatic stress disorder, depression, suicide, and the
exacerbation of existing mental health issues. These outcomes will increase mental health care
48
In addition, many people still believe that rape occurs only when a stranger attacks an adult woman using overwhelming
force. Using this definition, boys or men cannot be raped; girls and adolescents cannot be raped; no one can be raped by
someone they know; and forced oral or anal sex does not constitute rape.
49
Use of the term “sexual abuse” would also be consistent with the federal criminal definition of sexual abuse. See 18 U.S.C. §
2242.
Page 39
expenditures both inside and outside of facilities. In addition to having many of the same lasting and
serious harms as other types of sexual abuse, voyeurism, indecent exposure, and sexual harassment in
detention and correctional settings are known precursors to the types of sexually abusive conduct that
are explicitly included in the definition of rape in PREA. Preventing, detecting, and reducing the
occurrences of these behaviors will enable officials to better prevent the sexually abusive conduct that
Congress explicitly included in its use of the term “rape.”
We urge the Department to adopt the NPREC’s definition of sexual abuse and to use it in its final
standards.
2. Would any of the Commission’s proposed standards impose ‘‘substantial additional costs’’?
The Eighth and the Fourteenth Amendments of the United States Constitution forbid cruel and unusual
punishment of incarcerated persons. This includes a responsibility to protect incarcerated individuals
from harm during their incarceration. The standards promulgated by the NPREC are an appropriate
compilation of the practices that many correctional professionals understand are needed in order to
meet that constitutional mandate. Courts have long rejected insufficient funding as an excuse for failing
to ensure the Constitutional rights of incarcerated people. Therefore, compliance with the majority of
these standards do not impose additional costs because they fulfill the government’s responsibilities
under the Constitution or other sources of law. Keeping track of data regarding allegations and
substantiated incidents of sexual misconduct, analyzing them, learning from mistakes and conducting
periodic audits are all key components to effective quality assurance. Systems need to be able to
identify their problems and figure out whether they are implementing strategies effectively in order to
truly effectuate the protections imagined by Congress.
Relative to the billions of dollars spent on corrections every year, the costs for implementing these
standards, even for the least prepared jurisdiction, will be small. Most facilities housing youth can meet
the standards’ requirements through low and no cost options, such as repurposing staff and
incorporating information about sexual abuse into existing training and orientation materials. While
there may be some upfront “costs of conversion” as corrections professionals examine their facility
layout, staffing patterns, existing training curricula, and modify those aspects of policy and procedure
that fail to thoroughly protect against sexual abuse, we anticipate these costs to be minimal, especially
when weighed against the human costs of failure to prevent abuse and the potential costs of litigation
from resultant harms.
We believe compliance with the standards will prove especially cost effective with respect to reducing
the sexual abuse of children. Research conducted by the National Institute of Justice (NIJ) shows that
child sexual abuse is among the most costly crimes against children. In fact, as a nation we already are
paying the costs of sexual abuse as the NIJ study estimates that each year child sexual abuse in America
Page 40
costs the nation $23 billion. 50 Although the direct economic costs associated with sexual abuse of
children in correctional environments are not known, all available research indicates that preventing the
sexual abuse of children is cost effective.
Any considerations of the cost of protecting residents from sexual abuse must be understood in light of
the dramatic benefits of doing so – for the agency, the individual, and society. For the agency,
implementing the standards’ provisions will promote safety and efficiency, resulting in net savings in
areas such as investigations, resident health care, and transportation for outside treatment. Moreover,
preventing sexual abuse and providing victimized youth with appropriate follow up care minimizes the
likelihood that they will suffer the life long emotional trauma often experienced by victims of sexual
abuse.
We hope that any cost analysis completed by the Justice Department will specifically incorporate the
findings from several cost studies related to child sexual abuse. According to a September 2007
Economic Impact Study by Prevent Child Abuse America, an extensive body of research demonstrates
that child sexual abuse has pervasive and long lasting effects on children, their families, and the society.
In addition to the costs associated with the immediate adverse consequences resulting from abuse, the
effects of abuse extend far beyond adolescence, compromising lifetime productivity. Children who have
been sexually abused are more likely to experience adverse outcomes in a number of areas, including:
Poor physical health (e.g., chronic fatigue, altered immune function, hypertension, sexually
transmitted diseases, obesity);
Poor emotional and mental health (e.g., depression, anxiety, eating disorders, suicidal thoughts
and attempts, post traumatic stress disorder);
Social difficulties (e.g., insecure attachments with caregivers, which may lead to difficulties in
developing trusting relationships with peers and adults later in life);
Cognitive dysfunction (e.g., deficits in attention, abstract reasoning, language development, and
problem solving skills, which ultimately affect academic achievement and school performance);
High risk health behaviors (e.g., a higher number of lifetime sexual partners, younger age at first
voluntary intercourse, teen pregnancy, alcohol and substance abuse); and
Behavioral problems (e.g., aggression, delinquency, and adult criminality).51
50
Ted R. Miller et al., National Institute of Justice, Victim Costs and Consequences: A New Look (1996), available at
http://www.ncjrs.gov/pdffiles/victcost.pdf.
51
Ching Tung Wang & John Holton, Total Estimated Cost of Child Abuse and Neglect in the United States (Prevent Child Abuse
America Economic Impact Study, Sept. 2007), available at
http://www.preventchildabuse.org/about_us/media_releases/pcaa_pew_economic_impact_study_final.pdf.
Page 41
Beyond the economic impact of sexual abuse in detention, the moral costs of continuing to allow
children to be sexually abused by staff, other youth, or adult inmates, when the Commission has
identified clear ways to prevent it, must also be considered. When a youth is placed in a facility, the
government becomes his or her guardian and incurs the absolute responsibility to protect that child
from abuse. Failing to take the steps needed to prevent sexual abuse and avoid its devastating impact
on victims and their loved ones is in direct opposition to the rehabilitative goal of the juvenile justice
system.
Ultimately, the Office of Management and Budget will require the Department to conduct a cost benefit
analysis of the standards. An examination of facility administrators’ estimates of costs alone will not
meet this requirement. We urge you to examine the full range of cost savings that will come from
implementing the recommended standards by specifically examining the impact these standards will
have on children. We believe that a full analysis will reveal that, in the aggregate, the cost savings will
far outweigh any small short term cost.
3. Should the Department consider differentiating within any of the four categories of facilities for
which the Commission proposed standards …?
Every facility is responsible for upholding the Eighth and the Fourteenth Amendments of the United
States Constitution which forbid cruel and unusual punishment of incarcerated persons and include a
responsibility to protect incarcerated individuals from harm. These Constitutional requirements do not
vary with facility size, personnel, or other resource constraints.
The Commission’s standards represent basic measures that all facilities must put in place to meet their
constitutional obligations to protect residents from abuse. Relative to adult prisons, most juvenile
detention facilities are rather small. Nonetheless, the BJS found shockingly high rates of abuse,
confirming the urgent need for these standards in all institutions. Varying compliance requirements
based on factors such as the size and resources of a facility will needlessly complicate the otherwise
straightforward expectations set forth in the existing NPREC standards. Facilities across the country
have different architectural hazards; use varied methods of supervision of residents (e.g., the preferred
method of direct supervision protects against abuse more than linear surveillance methods or reliance
on monitoring technologies); employ different staffing patterns across units; operate different housing
arrangements across units (e.g., large dormitories with bunk beds versus single man cells); and
frequently operate in overcrowded conditions compromising the ability to keep residents safe.
Therefore, every facility, large and small, rural and urban, will have some areas in the facility that are at
heightened risk for sexual abuse to occur. The standards were drafted to be flexible enough to
accommodate these differences. In fact, the juvenile standards were specifically designed to account
for the wide age range among youth confined in a single facility, and to address care in both short term
detention facilities and long term confinement facilities.
Attempts to modify the standards to respond to facility by facility differences would not aid in the
prevention of sexual abuse. The Department would have to establish arbitrary cut off points, creating a
Page 42
bright line rule for when facilities can shirk their duty to protect youth, and these cut off points will
inevitably be challenged by facilities on the margins. Even once those distinctions are defined, the
dynamic nature of detention facilities will inevitably result in changes in these factors at specific
institutions, thereby creating a question about where a facility with changed circumstances would fit
within the compliance hierarchy. Facilities often have fluctuating populations which can vary by day of
week and even season, thus creating unnecessary confusion if standards were based on facility
population. It would be likely that a facility would need to follow one set of standards on certain days,
but a different set of standards on different days. This confusion is unnecessary because the standards
were drafted with an understanding of the multiple types and constraints of facilities. Furthermore,
facilities of every size should be able to take a comprehensive approach to preventing sexual abuse,
which is the framework that is proposed by the NPREC standards.
However, as discussed above, we believe that the adult standards fail to account for the unfortunate
reality that youth are incarcerated in those facilities. The child specific protections included in the
juvenile facility standards should be incorporated equally into the adult standards until youth have been
removed wholesale from those facilities.
Page 43
Index to Comments on Specific Standards
Standard
Page(s) Mentioned
Standard
Page(s) Mentioned
Glossary Terms
21, 22, 31, 37, 38
RE 2
8, 10
RE 3
31
PP 1
PP 2
28
RE 4
37
PP 3
9
OR 1
8, 22, 23, 37
PP 4
9, 34, 35
OR 2
37
PP 5
9, 30
OR 3
PP 6
7, 32, 33
OR 4
8, 30, 32
PP 7
7, 9
OR 5
8
PP 8
9
IN 1
RP 1
7, 30, 31
IN 2
RP 2
7, 30, 31
IN 3
RP 3
DI 1
RP 4
7, 37
DI 2
8, 21, 22, 23, 24, 25, 36
TR 1
11, 30, 31
MM 1
9, 12, 13, 14, 15, 30, 32
TR 2
11
MM 2
9, 15, 16
TR 3
7, 30, 31
MM 3
9, 15, 16, 17, 30, 32
TR 4
23
DC 1
TR 5
DC 2
SC 1/AP 1
12, 13, 17, 18, 19, 31
DC 3
SC 2/AP 2
8, 17, 18, 19, 20, 24, 25
DC 4
RE 1
10, 36
AU 1
Page 44
15
9, 10
Appendices
A. Hidden Injustice: Lesbian, Gay, Bisexual, and Transgender Youth in Juvenile Courts
B. Relevant Statutory Sections of the Juvenile Justice and Delinquency Prevention Act (JJDPA)
C. Guidance Manual for Monitoring Facilities Under the JJDPA
D. Policy Statements in Support of Removing Youth from Adult Facilities
Page 45
Hidden injustice
Lesbian, Gay, Bisexual, and
Transgender Youth in Juvenile Courts
EQUITY PROJECT PARTNERS
1254 Market Street, 3rd Floor
San Francisco, CA 94102
tel. 415.863.3762
fax 415.863.7708
National Center for Lesbian Rights
www.nclrights.org
870 Market Street, Suite 370
tel. 415.392.6257
fax 415.392.8442
National Juvenile Defender Center
www.njdc.info
1350 Connecticut Avenue NW, Suite 304
Washington, DC 20036
tel. 202.452.0010
fax 202.452.1205
ensuring fairness & dignity for LGBT youth in the justice system
HIDDEN INJUSTICE
Legal Services for Children
www.lsc-sf.org
Hidden
Injustice
Transgender Youth
in Juvenile Courts
Hidden
Injustice
Transgender Youth
in Juvenile Courts
Written by
Katayoon Majd
Jody Marksamer
Carolyn Reyes
Fall 2009
HIDDEN INJUSTICE
Hidden Injustice: Lesbian, Gay, Bisexual, and
© 2009 Legal Services for Children, National Juvenile Defender Center, and
National Center for Lesbian Rights. All Rights Reserved.
Copyediting: Jill Marts Lodwig
Graphic Design: Susan Pinkerton/Pink Design
Printing: Autumn Press
iv
Preface
To promote leadership and provide guidance regarding lesbian, gay, bisexual, and transgender (LGBT) youth in the juvenile justice system, Legal Services for Children, the National Center for Lesbian Rights, and the National Juvenile Defender Center joined in
2005 to launch the Equity Project. The Equity Project represents a unique collaboration
of individuals and organizations with diverse expertise relevant to LGBT youth in the
juvenile justice system. In addition to the lead organizations, the Equity Project receives
critical guidance from the Equity Project Advisory Committee (EPAC), which is comprised
of individuals from across the country. EPAC includes individuals with expertise in juvenile court processing, professionals with experience working with LGBT youth in juvenile
courts, and LGBT youth who have been in the juvenile justice system. The role of EPAC has
been to advise project staff about substantive issues, strategize about project activities, and
provide relevant contacts to help staff meet project goals. A list of EPAC members follows
this preface.
The Equity Project is a multiyear initiative aimed at ensuring that LGBT youth who are in
the juvenile justice system are treated with dignity, respect, and fairness. The Equity Project examines issues that impact LGBT youth throughout the duration of the juvenile court
process, ranging from arrest through post-disposition. The goals of the Equity Project are to:
Understand the needs, strengths, and experiences of LGBT youth involved in the
juvenile justice system;
Identify obstacles to the equitable treatment of LGBT youth in the juvenile justice
system;
Recommend concrete strategies for promoting the equitable treatment of LGBT
youth in the juvenile justice system; and
Educate juvenile justice system professionals through dissemination of policy and
practice recommendations and tools.
To advance these goals, the Equity Project has been engaged in a multiyear effort to understand, analyze, and document both the experiences of LGBT youth in the juvenile justice
system and the views and responses of the juvenile court professionals who work with
them. It has been an eye-opening experience, as you will read in the coming pages.
While so many individuals and organizations contributed to the overall fabric of this report, Katayoon Majd, Jody Marksamer, and Carolyn Reyes wove it all together. We are very
grateful for their hard work, determination, commitment, and leadership on the important
issues and recommendations set forth in this report. We hope Hidden Injustice will provide
—Shannan Wilber
—Patricia Puritz
v
Equity Project Advisory Committee
Marty Beyer, Ph.D., psychologist,
juvenile justice and child welfare
consultant, Cottage Grove, OR
Robert Bidwell, M.D., Department of
Pediatrics, John A. Burns School of
Medicine, University of Hawai‘i,
Honolulu, HI
Derwyn Bunton, J.D., Orleans Public
Defender, New Orleans, LA
HIDDEN INJUSTICE
Thomas Burrows, J.D., Legal Aid
Society, Juvenile Rights Practice,
Jamaica, NY
Elizabeth Calvin, J.D., Human Rights
Watch, Los Angeles, CA
Mishi Faruqee, M.A., Youth Justice
Program, Children’s Defense Fund,
New York, NY
Barbara Fedders, J.D., University of
North Carolina, School of Law, Chapel
Hill, NC
Kimberly Forte, J.D., Legal Aid Society,
Juvenile Rights Practice Special Litigation
and Law Reform Unit, New York, NY
Maria Ramiu, J.D., Youth Law Center,
San Francisco, CA
Jennifer Riley-Collins, J.D., juvenile
defense attorney, Jackson, MS
Marlene Sanchez, Center for Young
Women’s Development,
San Francisco, CA
Andrew Shookhoff, J.D., Vanderbilt
Child and Family Policy Center,
Nashville, TN
Wesley Ware, Juvenile Justice Project of
Louisiana, New Orleans, LA
Marynella Woods, M.S.W., San
Juvenile Division, San Francisco, CA
Robert Woronoff, M.S., child welfare
policy and training consultant, Los
Angeles, CA
Captain Verrottica Young, Youth
Training Project and Alliance for Racial
Equity, Sacramento, CA
Laura Garnette, M.P.A., Santa Cruz
County Probation Department,
Santa Cruz, CA
Judge Paula J. Hepner, J.D., Supervising
Judge, Kings and Richmond County
Family Court, Brooklyn, NY
Andrea Khoury, J.D., American Bar
Association Center on Children and the
Law, Washington, DC
vi
Acknowledgments
This project would not have been possible without the assistance of all the juvenile justice
professionals and advocates who graciously shared their insights with us as we developed this report. We are grateful to the courageous LGBT youth who generously shared
their experiences with us, inspiring and challenging us in our work on their behalf. We
are especially indebted to an anonymous donor who generously supported this project
and to the Out-of-Home Youth Fund of Tides Foundation that underwrote the production and distribution of this report. The entire Equity Project Advisory Committee, listed
on the previous page, is applauded for devoting their time and expertise to this effort.
We offer special thanks to Marty Beyer, Elizabeth Calvin, Barbara Fedders, Laura Garnette, Judge Paula Hepner, Maria Ramiu, and Andy Shookhoff for providing an in-depth
review of an earlier draft of this report. Shannan Wilber and Patricia Puritz provided
leadership and guidance on all aspects of this project, for which we are grateful.
We acknowledge the groundbreaking work of Drs. Caitlin Ryan, Angela Irvine, and Lori
these issues and who have provided essential support to the project. We are also indebted to Dr. Caterina Roman (formerly of the Urban Institute) for her guidance as we
developed surveys.
We offer special thanks to the individuals and organizations that recruited for, hosted,
and conducted youth focus groups across the country. These individuals include Simon
bian Center); Mishi Faruqee (Children’s Defense Fund); Joyful Freeman and colleagues
(American Friends Service Committee); Darby Hickey (formerly of Different Avenues in
the District of Columbia); DeAvery Irons (Correctional Association of New York); Dana
Kaplan and Wesley Ware (Juvenile Justice Project of Louisiana); Catherine Lund and Karen Minns (formerly of Gay and Lesbian Adolescent Social Services in Los Angeles); Jude
McNeil (Utah Pride Center); Jane Ottow (Children’s Service Society of Wisconsin); Sabel
Samone and Bamby Salcedo (Children’s Hospital Los Angeles); Averria Scott (formerly
of Gay and Lesbian Adolescent Social Services in Oakland); Andy Shookhoff (Vanderbilt
Child and Family Policy Center in Nashville); Lane Simpson and Shaneka Taylor (Department of Children’s Services in Nashville); and Rob Woronoff (Los Angeles).
In addition, we would like to thank Sarah Bryer of the National Juvenile Justice Network
for disseminating surveys to the network and Bart Lubow and Raquel Mariscal of the
Annie E. Casey Foundation Juvenile Detention Alternatives Initiative for their assistance
in distributing surveys and generating interest in this project.
Former and current staff and interns at Legal Services for Children (LSC), National Center for Lesbian Rights (NCLR), and National Juvenile Defender Center (NJDC) deserve
special mention. At the early stages of the project, Julia Kernochan (formerly of NJDC)
provided valuable research assistance and helped develop project methodology. Emily
Rodda at LSC, Joshua Delgado at NCLR, and Sarah Bergen at NJDC provided critical
support on numerous aspects of this project and Shella Brenner at LSC guided the design and printing. We are also thankful for the efforts of the following interns who as-
vii
sisted with conducting interviews, organizing and analyzing data, developing surveys,
drafting focus group protocol, gathering resource material, and helping with revisions of
the report: Alexandra Berman, Whitney Cork, Deirdre Dorval, Meghan Hennessy, Kara
Korbel-Chinula, Jessica Oats, and Rita Rodriguez at LSC; Daniel Becton, Yah Demann,
Daniel Ediger, Amanda Kennedy, Talia Stoessel, CT Turney, Corina Valderrama, and Alicia Virani at NCLR; and Currey Cook, Jozef Kopchick, Leah Lepkowski, and Lauren
Robbins at NJDC.
Photography
HIDDEN INJUSTICE
This report makes use of licensed stock photography as well as still shots from self-made
digital stories by youth in a DVD produced by the Center for Digital Storytelling and the
Y.O.U.T.H. Training Project of San Francisco State’s Bay Area Academy and distributed by
the National Center for Lesbian Rights. All photography is for illustrative purposes only. All
persons depicted are models except in photos from the NCLR Digital Stories DVD.
Cover © istockphoto.com/jabejon
Page x © istockphoto.com/ericsphotography
Page 1 © bigstockphoto.com/trance-er
Page 2 © bigstockphoto.com/anitapatterson
Page 5 © bigstockphoto.com/brasington
Page 8 © istockphoto.com/lakovKalinin
Page 14 © istockphoto.com/starfotograf
Page 15 © NCLR Digital Stories DVD
Page 19 © bigstockphoto.com/marty
Page 22 © istockphoto.com/mandygodbehear
Page 28 © istockphoto.com/bo1982
Page 34 © istockphoto.com/juanestey
Page 36 © istockphoto.com/helenecanada
Page 37 © bigstockphoto.com/xmasbaby
Page 42 © istockphoto.com/Thomas_EyeDesign
Page 45 © bigstockphoto.com/lisafx
Page 47 © bigstockphoto.com/vvvstep
Page 50 © istockphoto.com/starfotograf
Page 52 © bigstockphoto.com/ils26
Page 62 © bigstockphoto.com/keeweeboy
Page 65 © istockphoto.com/mcmenomy
viii
Page 68 © istockphoto.com/benedek
Page 72 © bigstockphoto.com/Kettu
Page 77 © istockphoto.com/benedek
Page 78 © istockphoto.com/Thomas_EyeDesign
Page 82 © bigstockphoto.com/vvvstep
Page 85 © istockphoto.com/jabejon
Page 92 © istockphoto.com/andipantz
Page 100 © istockphoto.com/dizzy
Page 116 © bigstockphoto.com/oscarcwilliams
Page 121 © bigstockphoto.com/lisafx
Page 125 © bigstockphoto.com/marty
Page 143 © istockphoto.com/dizzy
Page 144 © bigstockphoto.com/keeweeboy
Table of Contents
Executive Summary ................................................................................................................................... 1
Introduction ............................................................................................................................................... 9
Methodology ............................................................................................................................................ 15
Chapter 1:
Barriers to Fair and Effective Juvenile Justice Systems ................................. 23
Chapter 2:
Professionals’ Responsibility to Treat Youth in Juvenile Courts Fairly ...... 35
Chapter 3:
Common Misconceptions and Biases About LGBT Youth ........................... 43
in the Juvenile Justice System
Chapter 4:
Attempts to Change, Control, or Punish LGBT Adolescent ........................ 61
Sexual Orientation and Gender Identity
Chapter 5:
Impact of Family Rejection and School Harassment on ............................... 69
LGBT Youth Involvement in the Juvenile Justice System
Chapter 6:
Lack of Services to Meet the Needs of LGBT Youth .................................... 83
Chapter 7:
Harmful and Inappropriate Use of Pretrial Detention ................................. 93
Chapter 8:
.............. 101
Chapter 9:
Barriers to Zealous Defense Advocacy for LGBT Youth ............................ 117
Chapter 10: Conclusion and Recommendations ............................................................... 137
APPENDICES
Appendix A:
................................................................ 145
Appendix B: Survey for Defenders ...................................................................................... 149
Appendix C: Youth Focus Group Survey ............................................................................. 156
Appendix D: Redacted Court Order Regarding Transgender Youth ............................... 157
Appendix E: Model Non-Discriminatory Services Policy ................................................. 159
ix
Executive Summary
Executive Summary
The juvenile justice system is at a crossroads. After more than 20 years of increasingly punitive responses to youthful offending, reform efforts are underway in many jurisdictions to
develop more fair and effective juvenile courts. Notably absent from these efforts, however,
has been a focus on the unique experiences of lesbian, gay, bisexual, and transgender (LGBT)
court-involved youth. The lack of leadership and professional guidance for juvenile justice
professionals working with these youth is cause for concern. LGBT youth continue to face
harmful discrimination in their homes, schools, and communities. These experiences can
place LGBT youth at risk of juvenile court involvement and affect the course of their de-
Hidden Injustice
juvenile courts across the country. The report is based on information collected from 414
surveys and 65 interviews with juvenile justice professionals, including judges, defense
-
this report are to:
1.
2.
3.
Educate professionals working in the juvenile justice system about the continuing
stigma against LGBT youth, the relevance of sexual orientation and gender identity in
juvenile justice contexts, and the experiences of LGBT youth in the system;
Identify obstacles to fair and equitable treatment of LGBT youth in delinquency and
status offense cases; and
Recommend concrete practice and policy reforms that will protect the rights of LGBT
youth and ensure that the system responds effectively to them.
Several themes emerged from
this project’s data collection
efforts. While a handful of jurisdictions and individuals are
striving to enhance their capacity to work with LGBT youth,
these are the exception rather
than the rule. This report discusses how LGBT court-involved youth across the country often face denials of due
process, unduly punitive responses, harmful services and
programs, and unsafe condi-
1
Executive Summary
youth’s behavior and service needs, juvenile justice professionals remain unprepared to ef-
Barriers to Fair and Effective Juvenile Justice Systems
A number of factors in the juvenile justice system negatively impact the experiences of
LGBT court-involved youth. Rooted in lack of understanding of—and sometimes outright
bias against—LGBT youth, these factors undermine the effectiveness of the juvenile justice
system in working with LGBT youth.
HIDDEN INJUSTICE
Common misconceptions about, and biases against, LGBT youth
negatively impact how the juvenile justice system responds to them.
The juvenile justice system is characterized by a profound lack of acceptance of LGBT
identity, based in large part on misconceptions about sexual orientation and gender
identity. These include myths that youth, by virtue of their age, cannot be LGBT or that
LGBT youth simply do not exist within the juvenile justice population. In reality, sexual
orientation and gender identity for many individuals are established at young ages, and
emerging research indicates that approximately 13 percent of youth in detention facilities across the country are LGBT. The failure of some juvenile justice professionals to
recognize the existence of LGBT youth has left them ill equipped to meet the needs of
this largely hidden population.
Another harmful myth is that sexual orientation and gender identity are matters of person-
identity. Attempts to change either are futile and dangerous.
The lack of understanding of transgender youth is particularly striking. Some professionals do not understand the difference between transgender youth and lesbian, gay, or bisexual youth. Transgender individuals have a gender identity (i.e., a deeply-held, internal
sense of being male, female,
or other) that differs from
their assigned birth sex. According to medical experts,
allowing transgender youth
to express their core gender
identity is critically important for their well-being. Yet
some professionals mistake
expressions of gender-nonconformity (through choice
of hairstyle, clothing, mannerisms, and name) as rebellious behavior to be corrected rather than what it is:
core identity.
2
Some professionals in the juvenile justice system attempt to change,
control, or punish LGBT adolescent sexual orientation and gender identity.
For example, evidence exists that police regularly target LGBT youth for arrest and selectively enforce laws against them. In particular, LGBT youth are disproportionately charged
with, and adjudicated for, sex offenses in cases that the system typically overlooks when
heterosexual youth are involved. Even in cases involving nonsexual offenses, courts sometimes order LGBT youth to submit to sex offense risk assessments or undergo sex offender
treatment programs based merely on their sexual orientation or gender identity. Similarly,
LGBT youth sometimes are ordered to participate in dangerous counseling sessions or programs that use unscrupulous measures in an attempt to force youth to change their sexual
orientation or gender identity. The medical and mental health professions have unequivocally condemned such efforts because they are both ineffective and damaging.
Family rejection of LGBT youth increases the risk of their involvement in the
juvenile justice system and negatively impacts their cases.
While many families support their LGBT children, studies indicate that numerous LGBT
youth of all races and ethnicities experience family rejection because of their sexual orientation or gender identity. Family rejection has negative health and mental health outcomes and can lead to homelessness; these factors, in turn, can increase youth’s risk of
LGBT are at risk of entering the system for status offenses (particularly ungovernability
and running away), domestic disturbances, and survival crimes, such as shoplifting and
prostitution.
Once LGBT youth have contact with the system, lack of family support increases the likelihood of formal processing rather than diversion, detention, and punitive dispositions. It
lack of family support as a serious problem for LGBT youth in the juvenile justice system.
Pervasive harassment of LGBT youth at school also impacts their involvement
in the juvenile justice system.
School environments often are particularly hostile toward LGBT students. The pervasive
ures to keep students safe—have been well documented. To avoid victimization, many
dents end up in the juvenile justice system on disorderly conduct or assault charges when
they try to defend themselves against attacks by their classmates. In other instances, school
3
Executive Summary
Perhaps the most damaging misconceptions about LGBT youth are those that equate
LGBT identity with sexual deviance and mental illness, which the medical and mental
health professions have roundly rejected. These biases can cloud decisions related to arrest, charging, adjudication, and disposition, with the cumulative effect of punishing or
criminalizing LGBT adolescent sexuality and gender identity.
court for minor misconduct that could more appropriately be handled at school.
Left unaddressed, the problems that LGBT youth have at school can unnecessarily prolong
their involvement in the system and expose them to more restrictive dispositions. For example, conditions of probation commonly include a requirement that youth regularly attend school. LGBT youth who feel unsafe at school are forced to decide between skipping
school to protect themselves and complying with the terms of probation.
HIDDEN INJUSTICE
At every stage of the process, services and placements competent to serve
LGBT youth are lacking.
Programs and placements that competently serve LGBT youth are able to meet their needs,
nile justice professionals across the country are aware of few such programs, which undermines LGBT youth’s prospects for rehabilitation. There are few mental health professionals with expertise in the unique issues facing LGBT youth, and even fewer resources for
The lack of trained professionals and appropriate programs and placements pushes LGBT
youth deeper into the justice system and subjects them to unnecessarily punitive treatment. In many jurisdictions, for example, youth are detained or incarcerated not because
they pose a threat to the community but because less restrictive out-of-home placements
will not accept LGBT youth.
LGBT youth are unnecessarily and disproportionately detained pending trial
because of a lack of understanding of their life experiences.
suicide, more restrictive dispositions, and increased recidivism. Statutes and professional
standards provide that pretrial detention should be imposed only when a child poses a
situations in which these legal standards are not met.
LGBT youth are sexually predatory or cannot be kept safe in the community. In cases in
which parents refuse to assume custody of their LGBT children, courts rely on detention
as a default without considering possible alternative placements. In other instances, courts
detain youth who have been subjected to abuse and harassment in prior placements. For
Inadequate access to competent counsel who may be able to address these issues further
exacerbates these problems.
4
The youth and professionals interviewed for this report overwhelmingly agreed that secure facilities are particularly dangerous and hostile places for LGBT youth. Without antidiscrimination policies and training pertaining to LGBT youth, facilities are often unprepared to provide competent and equitable services to LGBT youth. As a result, staff and
other youth regularly subject LGBT youth to shocking physical, sexual, and emotional
abuse on the basis of their actual or perceived sexual orientation and gender identity. Facility staff also punish and ridicule youth based on their actual or perceived sexual orienemotional well-being by failing to provide transgender youth with medically necessary
transition-related medical care.
Without proper training and policies, facility staff regularly make inappropriate decisions
plemented to protect youth or based on the unfounded fear that LGBT youth will sexually
prey on others, isolating LGBT youth solely on the basis of their sexual orientation or gender identity violates their constitutional rights and seriously compromises their emotional
well-being. Transgender youth face an additional challenge because they are often placed
in sex-segregated facilities according to their birth sex, rather than their gender identity.
For transgender girls, in particular, automatic placement in boys’ facilities places them at
great risk of sexual abuse by other residents and facility staff.
5
Executive Summary
LGBT youth experience egregious conditions of confinement in detention and
other secure facilities.
Delinquency courts fail to protect the due process rights of LGBT youth,
particularly the right to effective counsel.
HIDDEN INJUSTICE
Defense counsel plays a critical role in protecting the rights of youth at every stage of a
delinquency case, from the initial hearing through post-disposition. In addition to the welldocumented failures of juvenile indigent defense systems that affect all juvenile respondents, a lack of LGBT-sensitive advocacy deprives many LGBT youth of their due process
rights. Lack of education about LGBT youth undermines defenders’ abilities to build effective attorney-client relationships. Some defenders allow their own biases about sexual
orientation and gender identity, rather than their client’s expressed interests, to guide their
advocacy. These actions violate defense attorneys’ ethical responsibilities to their clients.
The failure to ensure that LGBT youth receive quality legal representation at all stages of
their case makes them vulnerable to uncounseled guilty pleas, unnecessary detention and
incarceration, and inappropriate services at disposition.
Core Recommendations
fessionals to ensure fair and effective decision making is achievable. The core recommenare designed to guarantee due process protections and improve outcomes for all youth in
delinquency proceedings, including LGBT youth. To help ensure the rights of youth and
meet their rehabilitative needs in delinquency and status offense cases, the Equity Project
recommends the following:
1.
Juvenile justice professionals (including judges, defense attorneys, prosecutors, probawith fairness, dignity, and respect, including prohibiting any attempts to ridicule or
change a youth’s sexual orientation or gender identity.
2.
Juvenile justice professionals must promote the well-being of transgender youth by
allowing them to express their gender identity through choice of clothing, name, hairstyle, and other means of expression and by ensuring that they have access to appropriate medical care if necessary.
3.
Juvenile justice professionals must receive training and resources regarding the unique
societal, familial, and developmental challenges confronting LGBT youth and the relevance of these issues to court proceedings. Trainings must be designed to address the
4.
Juvenile justice professionals must develop individualized, developmentally approcircumstances of his or her life.
velop, adopt, and enforce policies that explicitly prohibit discrimination and mistreat-
6
ment of youth on the basis of actual or perceived sexual orientation and gender identity at all stages of the juvenile justice process, from initial arrest through case closure.
6.
Juvenile courts must commit to using the least restrictive alternative necessary when
intervening in the lives of youth and their families and avoid unnecessary detention
and incarceration.
7.
Juvenile courts must collaborate with other system partners and decision makers to
develop and maintain a continuum of programs, services, and placements competent
to serve LGBT youth, including prevention programs, detention alternatives, and nonsecure and secure out-of-home placements and facilities. Programs should be available
identity of their LGBT child.
8.
Juvenile justice professionals and related stakeholders must ensure adequate development, oversight, and monitoring of programs, services, and placements that are competent to serve LGBT youth.
10. Juvenile justice professionals must take responsibility for protecting the civil rights of
LGBT youth, and ensuring their physical and emotional well-being and safety in outof-home placements.
tions afforded LGBT youth. These protections must prohibit disclosure of information
about a youth’s sexual orientation and gender identity to third parties, including the
7
Executive Summary
counsel to provide zealous defense advocacy at all stages of delinquency proceedings.
Introduction
Introduction
“All members of the juvenile delinquency court shall treat youth, families, crime victims,
witnesses and others with respect, dignity, courtesy, and cultural understanding.”
—National Council of Juvenile and Family Court Judges1
Despite an improving social climate for lesbian, gay, bisexual, and transgender (LGBT)
individuals, LGBT youth still face tremendous hostility and bias in their homes, schools,
and communities. This societal discrimination places LGBT youth at risk of entering the
juvenile justice system. Once these youth are in the system, a number of systemic failures
converge to deprive them of their rights to due process and nondiscriminatory treatment.
Rooted in a deep lack of understanding of—and sometimes bias against—LGBT youth,
these failures can affect LGBT youth at every stage of a delinquency or status offense case.
Hidden Injustice
in juvenile courts and provide guidance to professionals working in the juvenile justice
workers). It builds on the important work of individuals who have tirelessly advocated for
LGBT court-involved youth for years.2 Nonetheless, a lack of leadership and professional
guidance, from both within and outside the juvenile justice system, remains. As a result,
even the most well-intentioned juvenile justice professionals are often unsure about how
to proceed in cases involving LGBT youth.3 The goals of this report are to:
1.
Educate professionals working in the juvenile justice system about the continuing
stigma against LGBT youth, the relevance of sexual orientation and gender identity in
juvenile justice contexts, and the experiences of LGBT youth in the system;
2.
Identify obstacles to fair and equitable treatment of LGBT youth in delinquency and
status offense cases; and
3.
Recommend concrete practice and policy reforms that protect the rights of LGBT youth
and ensure the system responds effectively to them.
Why Read a Report on LGBT Youth in the Juvenile Justice System?
Since sexual orientation and gender identity do not cause delinquent behavior, some juvenile justice professionals might question the need to read a report focusing on LGBT youth
in the system. As this report details, understanding the ways in which sexual orientation
and gender identity impact the experiences of LGBT youth, both within and outside the
system, is critical. The rest of this section elaborates on the reasons.
9
Introduction
A National Effort to Ensure Fairness, Dignity, and Respect for
LGBT Youth in the Juvenile Justice System
Juvenile justice professionals are already working with LGBT youth, but they
don’t always know it.
Even though more LGBT youth are coming out at younger ages, this population remains
largely hidden in the juvenile justice system. Many professionals are unaware that the
youth with whom they work are LGBT, even though emerging research shows that LGBT
youth represent as much as 13 percent of the total detained youth population.4 The research underscores the likelihood that juvenile justice professionals work with some or all
of the following youth, as Professor Barbara Fedders has described:
Young people who are open about being LGBT in all facets of their lives;
Young people who identify as LGBT but do not disclose those identities to juvenile
justice professionals;
HIDDEN INJUSTICE
Young people who come out as LGBT to their lawyers but ask that they not reveal
those identities to others;
Young people who experience same-sex desire, engage in same-sex sexual behaviors, or do not conform to gender norms, but do not personally identify as LGBT;
Young people who are not LGBT but are perceived to be so by their peers, families,
or communities; and
Young people who are questioning their sexual orientation or gender identity.5
Juvenile justice professionals are required to protect the rights of all youth,
including LGBT youth.
Regardless of their individual views about sexual orientation or gender identity, juvenile
justice professionals owe LGBT youth in the system the same professional and ethical duties as those owed to other youth, including fair and unbiased treatment. The role of juvenile justice professionals is not to determine whether each youth they work with is LGBT,
but rather to provide services in a manner that recognizes the possibility that any youth
might be LGBT.
Without an adequate understanding of the unique experiences of LGBT youth,
juvenile justice professionals are unable to make sound decisions throughout
the course of a case.
Juvenile justice professionals need to understand the factors affecting a youth’s development, decisions, and behaviors. These factors include age, mental and physical health,
disabilities, experiences of trauma, socio-economic status, race, ethnicity, family circumstances, sexual orientation, and gender identity. For LGBT youth, societal LGBT-related
stigma is a factor that may be relevant to their behavior and service needs.
10
Understanding LGBT Terminology
Sexual orientation refers to a person’s romantic and physical attraction to members of the
same or different sex. A continuum of sexual orientation exists, from exclusively heterosexual
(attraction to members of a different sex) to exclusively homosexual (attraction to members
of the same sex) with degrees of bisexuality (attraction to same-sex or other-sex people) in
between.
LGBT is an acronym for “lesbian, gay, bisexual, and transgender,” often used to refer to
individuals whose sexual orientation is not heterosexual or whose gender identity is nonconforming. Some people use the acronym LGBTQ to encompass the categories of “queer”
and “questioning” as well. Historically used as a derogatory term, queer has been widely
reclaimed, especially by younger LGBT people, as a positive social and political identity. It is
sometimes used as an inclusive, or umbrella, term for all LGBT people. Questioning refers
to the active process in which a person explores her or his own sexual orientation and/or
gender identity and questions the cultural assumptions that they are heterosexual and/or
gender conforming.
In addition, many young people, regardless of their sexual orientation, do not conform to
gender stereotypes and may dress and behave in ways that society attributes to a different
gender. These youth are often perceived to be LGBT and face some of the same risks of maltreatment as their LGBT peers.
The juvenile justice system is not adequately protecting the rights of LGBT
youth.
The pages that follow document the impact that lack of understanding and bias have on
LGBT court-involved youth, based primarily on information gathered from the youth
themselves and the professionals who work with them. Their experiences reveal that bias
and misunderstanding about LGBT youth lead to denials of due process rights, developmentally inappropriate responses to youth behavior, and ineffective and harmful programs and services. Some examples include:
Police arrested 16-year-old Marco6 after he tried to defend himself against physical
abuse by his father. The youth was charged with domestic assault, despite evidence
that his father was beating him to punish him for being gay.
11
Introduction
Gender identity is distinct from sexual orientation and refers to a person’s internal, deeply
felt sense of being male, female, something other, or in between. Everyone has a gender identity and for most, it is consistent with their anatomical sex. However, transgender individuals
have a gender identity that is different from their assigned birth sex. The term also describes
people whose gender expression does not conform to societal norms, although not all gender
nonconforming individuals identify as transgender.
A judge imposed a probation condition of no contact between 16-year-old Mary Beth
and her girlfriend, not because of any relation to the underlying offense, but merely
to end this same-sex relationship. When the youth allegedly violated the condition
by sending a note to her girlfriend, the judge ordered her detained for four weeks.
Destiny, a 16-year-old transgender youth, faced relentless sexual and physical abuse
while incarcerated in a boys’ facility. Her defense attorney refused to take any steps
to ensure her safety. Rather than advocate for her release, he argued that her continued incarceration was necessary because of her nonconforming gender identity.
HIDDEN INJUSTICE
A prosecutor argued in court that 14-year-old Adam needed to be placed in a restrictive setting reserved for youth at high-risk of sexual offending, merely because
Adam is gay.
Staff in a boys’ detention facility expected Jackie, a young transgender girl to shower
at the same time as the 13 boys from her unit. Fearing sexual assaults by the boys,
she refused to shower with them. The staff refused to make any accommodations for
her until the court ordered the facility to permit her to shower by herself.
These examples are unfortunately commonplace. Across the country, LGBT youth contend
with biased treatment by juvenile court professionals, unduly punitive responses, harmcan be overcome.
The recommendations in Hidden Injustice focus on the education of juvenile justice professionals and the development of LGBT-sensitive practices and policies to ensure that juvenile courts are equipped to respond to LGBT youth appropriately and effectively.
12
1.
2.
3.
4.
5.
6.
See, e.g., National Council of Juvenile and Family Court Judges, Juvenile
Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases 25
(2005).
These individuals, many of whom serve on the Equity Project Advisory
Committee (EPAC), have conducted innovative research, brought pioneering
litigation, and advanced important policies that promote the equitable treatment
of LGBT youth in the juvenile justice system. In particular, a 2001 report by the
Urban Justice Center helped lay the foundation for this project: Randi Feinstein
et al., Justice for All? A Report on Lesbian, Gay, Bisexual, and Transgendered Youth
in the New York Juvenile Justice System (2001). It focused on the New York justice
system, illustrating disparities in the treatment of LGBT youth, the scarcity of
appropriate disposition options, and the lack of safety for LGBT youth in juvenile
facilities.
Since the beginning of the Equity Project in 2005, more than 100 juvenile justice
professionals have contacted representatives of the project with requests for
assistance with cases involving LGBT youth.
Angela Irvine, Ceres Policy Research, The Inappropriate Use of Secure Detention for
Lesbian, Gay, Bisexual, Transgender, and Queer Youth, presented at the Columbia
with authors). Results of this study will appear in 19 Columbia Journal of Gender &
Law (forthcoming 2010).
Barbara Fedders, Coming Out for Kids: Recognizing, Respecting, and Representing
LGBTQ Youth, 6 Nev. L.J. 774, 780 (2006).
This report uses pseudonyms for youth.
13
Introduction
Endnotes
Methodology
Methodology
Research for this report included an extensive review of existing literature on LGBT youth,
interviews with and surveys of juvenile justice professionals, and interviews with and
focus groups of youth from across the country. The information obtained provides an important snapshot of the experiences and observations of LGBT youth and juvenile justice
professionals nationwide.
Literature Review
Surveys of Juvenile Justice Professionals
justice professionals who serve in other capacities in the system. The surveys were six to
seven pages in length, requested mostly non-narrative answers, and covered a wide variety
of topics, including pathways leading LGBT youth
into the juvenile justice
system, the experiences of
LGBT youth in the system,
juvenile courts’ responses
to LGBT youth, barriers to
inclusive and appropriate
practices, and suggestions
for reform. There were
slight variations among
surveys based on the spesional group (see Appendix B for the survey for
defenders). To encourage
candor, project representatives assured participants
that their responses would
remain anonymous.
15
Methodology
The Equity Project conducted a review of interdisciplinary literature related to LGBT youth
and their treatment in the delinquency system. Part of this review involved social science
research on external factors that might impact LGBT youth involvement in the system,
such as family rejection, school harassment and violence, and health risk behaviors. In
addition, the project conducted legal and policy research that is relevant to the rights and
treatment of all youth in the juvenile justice system, as well as court-involved LGBT youth
in particular.
The surveys were distributed across the country at juvenile justice conferences and at
trainings conducted by the Equity Project. In addition, requests to complete the survey
electronically on the Equity Project website (www.equityproject.org) were posted broadly
over national list-serves, including those operated by the National Juvenile Defender Center, the Anne E. Casey Foundation’s Juvenile Detention Alternative Initiative, and the National Juvenile Justice Network. Approximately 2,000 individuals received these requests.1
In total, 414 completed surveys were received, including surveys from 243 defenders, 51
tention workers. Survey responses were received from 45 states.
Interviews of Professionals
HIDDEN INJUSTICE
The Equity Project also conducted interviews with juvenile justice professionals, either in
person or via telephone.2 In total, project staff interviewed 65 juvenile justice professionals,
workers, and 17 others. The other juvenile justice professionals included mental health
counselors, program administrators for out-of-home placements and probation depart-
Description of Service Area by Equity Project
Survey Respondents
RURAL 23%
URBAN 54%
SUBURBAN 23%
16
Youth Focus Groups and Interviews
The project convened eight youth focus groups in six cities—New York, Los Angeles, Oakland, Salt Lake City, Seattle, and Nashville—and conducted individual interviews with
youth in Louisiana and Utah. Local LGBT-serving organizations and advocates helped
recruit previously court-involved LGBT youth for the focus groups. As a result, all youth
participants were connected to and/or receiving the services of organizations with LGBTtargeted requests to generate youth interest in the focus groups. Youth received $20 gift
cards (for movie theaters or discount stores) for their participation.
information they provided would be used, and asked youth to sign an informed consent
form before participating. In addition, every participant completed a brief demographic
survey with questions about their age, race and ethnicity, gender identity, and sexual orientation, as well as basic information about their involvement in the justice system. (See
Appendix C for the youth focus group survey.)
A total of 55 youth, ranging in age from 14 years old to 23 years old, participated in the focus groups and interviews. Information about the gender identity, sexual orientation, and
race of participants is provided in the charts below.
Sexual Orientation of Youth Focus Group Participants
Gay
Lesbian
Sexual Orientation
Bisexual
Hetero
Hetero and Trans
Blank
Other
Queer
Two Spirit
0
2
4
6
8
10
Number of Youth
12
14
16
17
Methodology
Focus groups were conducted using a standardized protocol that included questions about
youth’s experiences in the juvenile justice system, their views on the treatment of LGBT
youth by juvenile justice professionals, the conditions in detention facilities, the relevance
of their LGBT identity to their court cases, and their recommendations for reform. Proj-
Gender of Youth Focus Group Participants
Male
Female
Gender
Male to Female
Female to Male
HIDDEN INJUSTICE
Other
FTM/Two Spirit
0
5
10
15
Number of Youth
20
25
30
Ethnicity of Youth Focus Group Participants
African American
Caucasian
Ethnicity
Latino
Multiracial
Native American
API
Other
Blank
0
18
5
10
15
Percent
20
25
30
Thirty of the 39 youth had
ment after disposition. Twenty-seven participants reported having been represented by a
defense attorney, while 10 were unrepresented by counsel during their case. Two youth did
not indicate whether they had legal representation.
Youth Experiences with the Juvenile Justice System
Percentage of court involved focus group participants who…
Experienced two or more delinquency cases
74%
26%
Spent time in detention before trial
77%
13%
Were unrepresented by counsel during their case
26%
19
Methodology
The youth who participated represent a wide range
of experiences with the
juvenile justice system.
Sixteen of them had never
had a delinquency case,
although many of these
youth had experienced
interactions with police,
some of which led to arrests. Of the remaining 39
participants, 10 had experienced one delinquency
case, 7 had experienced
two cases, 6 had three cases, 6 had four cases, and
Correspondence with Professionals
who contacted the Equity Project to ask questions about how to handle issues arising in
particular cases involving LGBT youth or to share their observations about the experiences
of LGBT court-involved youth.
Use of Names and Images in This Report
HIDDEN INJUSTICE
gion, with the exception of Equity Project Advisory Committee members, who are identi-
This report makes use of licensed stock photography. All photography is for illustrative
purposes only and all persons depicted are models except as noted in the photography
credits on page viii.
20
Endnotes
2.
This number is based on the estimated number of list-serv members, as well as
attendees at trainings and conferences at which surveys were distributed.
Individuals interviewed included survey participants, attendees at a juvenile justice
conference, and Equity Project Advisory Committee members.
Methodology
1.
21
Chapter 1
1
“Being in the juvenile justice system is about disrespect.”1
—Kiana, a 16-year-old multiracial male-to-female transgender youth
“If you are gay, you have to be better. And it’s a double whammy when you are black and
gay [in the juvenile justice system].”2
Juvenile courts were created over a century ago based on the belief that youth are more
amenable to treatment than adults and therefore should be treated in a separate system
that provides rehabilitation rather than punishment.3 In the early 1990s, however, legislators began calling for greater punishment of young offenders. States expanded the list
of negative consequences that could result from juvenile adjudications and passed laws
making it easier to prosecute youth in adult court.4 States also adopted “zero tolerance” approaches to school discipline, which resulted in dramatic increases in the number of youth
suspended and expelled from school for relatively minor offenses.
These changes came on the heels of a shift in federal policy toward status offenders in
the 1980s, with an amendment to the Juvenile Justice and Delinquency Prevention Act
that allowed for the incarceration of at-risk youth who violated court orders.5 With that
amendment, states increasingly treated at-risk youth like delinquent youth, though they
were not accused of committing a delinquent offense. Today, although most states retain
statutes, which explicitly provide that one purpose of juvenile courts is to provide treatment and rehabilitation,6 juvenile adjudications can trigger negative short- and long-term
7
Broader Systemic Issues Impact the Experiences of LGBT Youth
in the Juvenile Justice System
Along with this shift in approach has surfaced a broad range of systemic issues for youth
facing delinquency proceedings. Unfortunately, many youth involved in the juvenile justice system today experience denials of due process rights; overly punitive responses to
minor and fairly typical adolescent behavior; inappropriate detention and incarceration
(frequently in substandard facilities); an ever-growing list of collateral consequences; and
lenges facing LGBT youth in the juvenile justice system, this chapter aims to situate the experiences of LGBT youth within the context of these broader systemic issues. Many of the
injustices that LGBT youth experience in juvenile courts have their roots in the problems
that affect all youth in the system.
23
—Adam, a 14-year-old African-American gay male youth
HIDDEN INJUSTICE
Youth’s due process rights are subordinated to “best interest” rationales.
mine the fate of youth appearing before them. Under the parens patriae (“state as parent”)
doctrine, the presumption was that judges would act in the best interests of the child,
making due process rights unnecessary.8 It was not until 1967 that the United States Supreme Court recognized that even the most benevolent intentions do not justify arbitrary
procedures when a youth’s liberty is at stake. In the landmark case In re Gault, the Court
held that the Due Process Clause of the United States Constitution provides youth in delinquency cases with the right to counsel, the right to notice of charges, the right to confront
and cross-examine witnesses, and the privilege against self-incrimination.9 In subsequent
cases, the Court further expanded juveniles’ due process rights, holding that the “beyond a
reasonable doubt” standard of proof applied in delinquency cases10 and that juveniles were
protected from double jeopardy.11 The Court stopped short, however, of granting youth the
right to a jury trial.12 It also found that preventive detention, in which a child may be held
without bail, did not offend constitutional guarantees.13 These cases as a whole clearly
rejected the argument that the rehabilitative goals of juvenile courts could justify denying
youth procedural rights in cases in which their liberty—and reputation—were at stake.14
More than 40 years later, too many delinquency proceedings fall far short of providing
the due process protections required by Gault.15 With alarming frequency, in many courts
across the country, due process guarantees takes a back seat to perceived “best interests.”
Underlying this common practice in many cases is an unrealistic view that youth are better off in the system because they can access services unavailable in the community. As a
result, many courtrooms are characterized by a lack of formality, minimal or no advocacy
by youths’ attorneys, and a disregard for protecting individual rights. For example, youth
without any meaningful understanding of the rights they are giving up.16 Even when the
court appoints counsel, a lack of resources, training, and support, along with crushing
of these broken indigent defense systems on LGBT youth is discussed in Chapter 9, “Barriers to Zealous Defense Advocacy for LGBT Youth,” of this report.
The system has taken an increasingly punitive approach to youth behavior,
including relatively minor misconduct that is fairly typical of adolescence.
Current adolescent development research supports the fundamental premise of juvenile
courts that society should respond to youth crime differently than adult crime; however,
the juvenile justice system has taken an increasingly punitive approach to youth behavior,
including relatively minor misconduct that is fairly typical of adolescence. Compared to
adults, adolescents exhibit poorer judgment and are more impulsive, more susceptible to
peer pressure, and more likely to take risks. In addition, most youth “grow out” of their
delinquent behavior as they get older, even if they receive no intervention.17 These differences are grounded in biological realities; as brain imaging research reveals, the areas of
the brain responsible for impulse control and decision making are not fully developed until well into a person’s twenties.18 Despite the developmental research, the juvenile justice
24
1
system has steadily shifted away from rehabilitation and toward punishment in the last
few decades, as was mentioned earlier in this report.19
In the last 20 years, students have increasingly been referred to delinquency
courts for minor misconduct that in the past would have been handled
informally at school.20
such as disrupting class or talking back to teachers, and many schools have placed law ensuch as “disturbing the peace” or “disorderly conduct.”22 This increase in juvenile court
safest places for youth.23 Moreover, the policies have disproportionately impacted students
of color even though research shows that they do not commit more offenses, or more serious offenses, than their peers.24
Rather than treating these non-dangerous misbehaviors in the courts, youth should be provided the services they need to address their behaviors at school and in the community.25
In particular, school discipline practices, such as Positive Behavioral Interventions and
Supports (PBIS), which teach and reinforce positive behaviors and craft individualized interventions for problem behavior, have been shown to improve attendance and academic
achievement, decrease suspensions and expulsions, reduce school arrests, and reduce future delinquency and drug use.26
Like other youth, LGBT youth are impacted by the tendency to criminalize minor student
misbehavior. For them, however, the problem is exacerbated by the harassment and abuse
they face in school. Chapter 5, “Impact of Family Rejection and School Harassment on
LGBT Youth Involvement in the Juvenile Justice System,” discusses the interplay between
these policies and the pervasively hostile school environments with which LGBT youth
must contend.
The lines between status offenses and delinquent offenses continue to
blur, with many youth formally petitioned and incarcerated for noncriminal
misbehavior.
Status offenses are noncriminal but undesirable behaviors by a minor that are unlawful as
a result of the minor’s age. They include offenses such as ungovernability, running away,
truancy, and alcohol possession. Approximately 40 states have a separate legislative category for status offenses, although these states differ in how they respond to these behaviors.27 When legislatures started to pass status offender laws in the early 1960s, these laws
were intended to provide preventative measures to keep at-risk youth out of the criminal
justice system.28 Yet in the last two decades, the number of status offender cases formally
petitioned in court has doubled,29 and in 2004, status offenders comprised approximately
25
The passage of “zero tolerance” laws in the mid-1990s ushered in a new era of get-tough
approaches to student misbehavior, which led to increased suspensions and expulsions.21
18 percent of all juvenile arrests.30 In addition, although the federal Juvenile Justice and
Delinquency Prevention Act mandates that states receiving federal funds deinstitutionalize status offenders, a loophole that allows for the incarceration of youth who violate valid
court orders has resulted in many youth being locked up for noncriminal offenses that
pose no threat to public safety.31
HIDDEN INJUSTICE
Current research suggests that the best practice for addressing status offenses is to provide
youth and their families with immediate interventions through community-based social
services programs rather than relying on juvenile courts, yet few states have successfully
adopted this approach.32 LGBT youth are particularly vulnerable to these problems because they often enter the system on status offense charges stemming from factors like
family rejection and school harassment, which are discussed in Chapter 5.
The juvenile justice system has become the default system for handling youth
with histories of trauma, mental health issues, or learning disabilities, even
though the justice system is ill-equipped to serve these youth.33
Youth with mental health issues, learning disabilities, and histories of trauma disproportionately comprise the population of youth in juvenile courts.34 For many of these youth,
juvenile courts intervene because other child-serving systems, including mental health,
education, and child welfare systems, have failed to provide them with the treatment or
services they need.35 As a result, the juvenile courts have become an ineffective “dumping
ground” for low-risk, high-needs youth.36 This is particularly true for girls in the system,
who experience high rates of trauma.37 Girls are more likely than boys to be referred to the
justice system for status offenses. Even though these youth pose little public safety risk, the
number of girls detained in the last 10 years has dramatically increased.38
Rather than warehousing these youth in the juvenile justice system, the appropriate public
agencies should provide treatment and services in settings that can more appropriately
meet their needs. The impact of keeping youth in the delinquency system who would remeeting the treatment needs of LGBT youth, is discussed in Chapter 6, “Lack of Services to
Meet the Needs of LGBT Youth.”
Youth involved in juvenile courts are increasingly subject to harsh, long-term
collateral consequences, including sex offender registration.
cantly eroded, and the consequences of an adjudication now reach far beyond the life of a
case. Adjudicated youth are often precluded from public housing, expelled from school,
and barred from military service and employment opportunities as a result of their youthful mistakes.39 Juvenile adjudications can also be used to justify deportation of noncitizen
youth and enhance sentences in adult court.40 With the recent passage of the federal Adam
Walsh Act, adolescents as young as 14 are now subject to mandatory sex offender registration, in some cases for the rest of their lives, for a range of sex offenses, including con-
26
1
sensual sex, public exposure, or inappropriate touching.41 These registration requirements
carry a heavy stigma that limits the youth’s future life opportunities without reducing recidivism or increasing public safety.42 LGBT youth are particularly vulnerable to these new
requirements, given the tendency of the system to criminalize LGBT adolescent sexuality
and identity, which is discussed in more detail in Chapter 4, “Attempts to Change, Control,
or Punish LGBT Adolescent Sexual Orientation and Gender Identity.”
On any given day, 69,000 youth are held in correctional placements, and 26,000 are held in
juvenile detention centers pre-trial or while awaiting placement after adjudication.43 The
concerns. In 2003, for example, less than a quarter of detained and incarcerated youth
were adjudicated for violent felonies, while 45 percent were locked up for status offenses,
probation violations, misdemeanors, or low-level felonies that did not involve violence,
weapons, or drugs.44 In addition to the loss of liberty, detention and incarceration subject
youth to the risk of serious physical and sexual abuse within the facilities.45 The long-term
27
The juvenile justice system over-relies on detention and incarceration, even
for youth who pose little or no danger to public safety.
and less likely to complete high school, obtain employment, and successfully transition
into adulthood.46
Evidence exists that LGBT youth are over-represented in detention facilities for a number
community, as described in Chapter 7, “Harmful and Inappropriate Use of Pretrial Detention.” Once in detention or correctional facilities, LGBT youth are particularly vulnerable
to unconstitutional conditions of
HIDDEN INJUSTICE
8, “Unsafe and Unfair Conditions
pose little or no public safety risk,
research supports providing youth
with evidence-based programs in
the community, which are not only
effective, but also save money.47
For those youth who do need a secure out-of-home placement, the
“Missouri model,” which relies on
smaller regional facilities that provide treatment focused on positive youth development, has been
shown to be a more successful and
cost-effective alternative than the
traditional incarceration model.48
Racial and socio-economic disparities plague the justice system.
It is well documented that youth of color nationwide, particularly African-American
youth, are over-represented at every stage of the juvenile court process.49 Beginning at the
arrest decision, these racial and ethnic disparities intensify as youth further penetrate the
system.50 For example, in the two-year period between 2002 and 2004, African Americans
comprised 16 percent of the general youth population nationally, but 28 percent of juvenile
arrests, 30 percent of court referrals, 37 percent of youth in detention, 34 percent of youth
processed in the juvenile courts, 30 percent of adjudicated youth, 35 percent of youth judicially waived to adult court, 38 percent of youth placed out of home, and 58 percent of
youth incarcerated in adult prisons.51 Studies have shown that these disparities are not attributable to higher rates of offending among youth of color.52
Justice and Delinquency Prevention (OJJDP) study found that white youth report selling
drugs at higher rates than African-American youth, even though they are only half as likely
to be arrested for drug offenses.53
28
1
Similarly, low-income youth are more likely to enter the system and receive the most severe dispositions.54
tices and systemic responses to behavior rather than different offense rates. As one commentator noted: “It is the poor kid in trouble (especially if he is black) who is likely to end
up in jail and the rich kid in trouble who is likely to end up in boarding school, a private
drug program, or a mental health facility.”55
Though serious, the problems in the juvenile justice system are not intractable. Across the
country, momentum has been building to substitute failed policies with fair, effective, and
comes. The United States Supreme Court in 2005 held the juvenile death penalty unconstitutional in Roper v. Simmons, based on the fundamental truth that youth are different
from adults.56 Roper has reinvigorated advocates in their efforts to make the juvenile justice
system more responsive to the developmental realities of youth. In addition, philanthropic
foundations have provided impressive support to reform efforts across the country. For example, the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative (JDAI)
has demonstrated that jurisdictions can reduce the number of children detained pretrial
without any increase in offending and risk to the community.57 With proven success in
jurisdictions like Albuquerque, NM; Chicago; Portland, OR; and Santa Cruz, CA, JDAI is
working in 100 sites across the country to develop alternatives to detention that reduce the
58
The MacArthur Foundation Models for Change Initiative
has also been working to build successful and replicable models of rational, fair, effective,
and developmentally appropriate juvenile justice systems.
As states undertake reform, the unique experiences of LGBT youth must be considered.
The basic principles underlying fair juvenile justice systems are the same for all youth, but
without a true understanding of the challenges facing LGBT youth in the system, reform
efforts may unintentionally leave behind some of the most vulnerable youth.
29
Building Momentum for Juvenile Justice Reform
Endnotes
1.
2.
3.
4.
HIDDEN INJUSTICE
5.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
Equity Project focus group, Kiana, a 16-year-old multiracial male-to-female
transgender youth (May 1, 2008).
Equity Project focus group, Adam, a 14-year-old African-American, gay male youth
(May 8, 2008).
See The Annie E. Casey Foundation, A Road Map for Juvenile Justice Reform 3 (2008),
available at http://www.aecf.org/~/media/PublicationFiles/AEC180essay_booklet_MECH.pdf [hereinafter Casey Juvenile Justice Reform]. See also Mary Berkheiser,
The Fiction of Juvenile Right to Counsel: Waiver in the Juvenile Courts, 54 Fla. L. Rev. 577,
586 (2002).
Patricia Puritz & Katayoon Majd, Ensuring Authentic Youth Participation in Delinquency
Cases: Creating a Paradigm for Specialized Juvenile Defense Practice, 45 Fam. Ct. Rev. 466,
471 (2007).
Jessica R. Kendall, American Bar Association, Families in Need of Critical Assistance:
Legislation and Policy Aiding Youth Who Engage in Noncriminal Misbehavior vii (2007).
tice, National Overviews,
.
See Elizabeth Calvin et al., Advocacy and Training Guide: Juvenile Defender Delinquency
Notebook 6 (2d ed. 2006).
See
Prevention, Juvenile Offenders and Victims: 1999 National Report 87 (1999).
387 U.S. 1 (1967).
In re Winship, 397 U.S. 358 (1970).
Breed v. Jones, 421 U.S. 519 (1975).
McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971).
Schall v. Martin, 467 U.S. 253 (1984).
See Kent v. United States, 383 U.S. 541 (1966) (rejecting the argument that the rehabili[in juvenile court] receives the worst of both worlds” with “neither the protections
accorded to adults nor the solicitous care and regenerative treatment postulated for
children”).
Puritz & Majd, supra note 4, at 469-70.
American Bar Association Juvenile Justice Center, Youth Law Center, and Juvenile
Law Center, A Call for Justice: An Assessment of Access to Counsel and Quality of
Representation in Delinquency Proceedings 45, 52 (1995).
See Casey Juvenile Justice Reform, supra note 3, at 6, 11.
Melissa S. Caulum, Postadolescent Brain Development: A Disconnect Between
Neuroscience, Emerging Adults, and the Corrections System, 729 Wis. L. Rev. 740-43
(2007).
increased, totaling as many as 200,000 youth each year. See Campaign for Youth Justice, National Statistics, http://www.campaign4youthjustice.org/nationalstats.html.
30
Although it is beyond the scope of this report, prosecution of youth as adults is a
serious issue that exposes youth to a host of negative impacts, including the possibility of severe sentences and the risk of serious abuse in adult prisons. See also
National Council on Crime and Delinquency, Factsheet: Youth Under Age 18 in the
Adult Criminal Justice System (2006), available at http://www.nccd-crc.org/nccd/
pubs/2006may_factsheet_youthadult.pdf. More research is needed to examine the
impact of transfer policies on LGBT youth in particular.
20. See Marsha L. Levick & Robert G. Schwartz, Changing the Narrative: Convincing Courts
to Distinguish Between Misbehavior and Criminal Conduct in School Referral Cases, 9
UDC/DCSL L. Rev. 53, 53-56 (2007). See also Russell Skiba et al., American Psychological Association Zero Tolerance Task Force, Are Zero Tolerance Policies Effective
in the Schools? An Evidentiary Review and Recommendations 76 (2006), available at
http://www.apa.org/releases/ZTTFReportBODRevisions5-15.pdf; Advancement
Project, The Civil Rights Project & Harvard University, Opportunities Suspended:
The Devastating Consequences of Zero Tolerance and School Discipline 15 (2000),
http://www.civilrightsproject.ucla.edu/research/discipline/opport_suspended.
php#fullreport.
21. In 1994, the federal Gun-Free Schools Act was enacted, requiring the expulsion
See 20 U.S.C. § 7151 (2005). States
responded by going beyond the mandates of the law and adopting “zero tolerance”
policies that required expulsion for a host of other offenses, include drug possession,
22. Advancement Project, Education on Lockdown: The Schoolhouse to the Jailhouse Track 15
(2005).
23. See id. at 11.
24. See id. at 18-19; see also Russell J. Skiba et al., The Color of Discipline: Sources of Racial
and Gender Disproportionality in School Punishment 6 (2000), available at http://www.
indiana.edu/~safeschl/cod.pdf (“If anything, African American students appear to
receive more severe school punishments for less severe behavior.”); Russell J. Skiba
& Kimberly Knesting, Zero Tolerance, Zero Evidence: An Analysis of School Disciplinary
Practice, New Directions for Youth Development 17, 31-32 (2001).
25. See The Annie E. Casey Foundation, Issue Brief: Reform the Nation’s Juvenile Justice
System 3, 5 (2009) [hereinafter Casey Issue Brief].
26. See Mississippi Youth Justice Project, Effective Discipline for Student Success: Reducing
Student and Teacher Dropout Rates in Mississippi 1, 5-6 (2008).
27. Jessica R. Kendall, American Bar Association Juvenile Justice Center, Families in Need
of Critical Assistance: Legislation and Policy Aiding Youth Who Engage in Noncriminal
Misbehavior (2007).
28. See Tina Chiu & Sara Mogulescu, Vera Institute of Justice, Changing the Status Quo for
Status Offenders: New York State’s Efforts to Support Troubled Teens 1 (2004).
29. Charles Puzzanchera, National Center for Juvenile Justice, Trends in the Justice Sys2 (2007).
30. Act4 Juvenile Justice, The Juvenile Justice and Delinquency Prevention Act: A Fact Book
(2007), available at http://www.act4jj.org/media/factsheets/factsheet_27.pdf.
31. See Casey Issue Brief, supra note 25, at 6.
31
1
HIDDEN INJUSTICE
32. See Sara Mogulescu & Gaspar Cao, Vera Institute of Justice, Making Court the Last Resort: A New Focus for Supporting Families in Crisis 2 (2008); see also Kendall, supra note
27, at 7.
33. Casey Issue Brief, supra note 25, at 5.
34. See Casey Juvenile Justice Reform, supra note 3, at 12.
35. See id. at 12-13.
36. See id. at 6, 12-13.
37. See Marty Beyer et. al, A Better Way to Spend $500,000: How the Juvenile Justice System
Fails Girls, 18 Wis. Women’s L. J. 51, 52 (2003).
38. Alecia Humphrey, Girls in the Juvenile Justice System: The Integration of Gender, Age &
Crime, 18 Wis. Women’s L. J. 1, 1-2 (2003).
39. See Kristin Henning,
79 N.Y.U. L. Rev. 520, 542-576 (2004); see also
Lynda E. Frost & Adrienne E. Volenik, The Ethical Perils of Representing the Juvenile Defendant Who May Be Incompetent, 14 Wash. U. J. L. & Pol’y 327, 327-328 (2004); Michael
Pinard,
Consequences of Adjudications, 6 Nev. L. J. 1111, 1114-15 (2006); Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006) [hereinafter
Adam Walsh Act, 120 Stat. 587] (mandating that youth transferred to criminal court
and certain juveniles adjudicated delinquent in juvenile courts be included on both a
tion of the offender, the law requires registration for 15 years, 25 years, or life).
40. See Pinard, supra note 39;Berkheiser, supra note 3, at 646-49 (noting that all 50 states
permit sentence enhancements in one form or another based on delinquency adjudications and the Federal Sentencing Guidelines counting juvenile adjudications as adult
convictions).
41. Adam Walsh Act, 120 Stat. 587. See also Casey Juvenile Justice Reform, supra note 3, at 8.
42. Amanda Petteruti & Nastassia Walsh, Justice Policy Institute, Registering Harm: How
Sex Offense Registries Fail Youth and Communities 12 (2008).
43. Casey Juvenile Justice Reform, supra note 3, at 10.
44. Id. at 8-9.
45. Id. at 9; see also Barry Holman & Jason Ziedenberg, Justice Policy Institute, The Dangers
of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities
(2006); Barry Krisberg, National Council on Crime and Delinquency, Breaking the Cycle
of Abuse in Juvenile Facilities (2009).
46. Casey Juvenile Justice Reform, supra note 3, at 9; Holman & Ziedenberg, supra note 45, at
4-7, 9-10.
47. Casey Issue Brief, supra note 25, at 3.
48. See id.
49. See Eileen Poe-Yamagata & Michael A. Jones, Building Blocks for Youth, And Justice
for Some: Differential Treatment of Minority Youth in the Justice System 1-3 (2000);
Amanda Burgess-Proctor, Kendal Holtrop, & Francisco A. Villarruel, Campaign for
Youth Justice, Youth Transferred to Adult Court: Racial Disparities 7-11 (2007); Donna M.
Bishop & Charles E. Frazier, Race Effects in Juvenile Justice Decision-Making: Findings of a
32
50.
51.
52.
53.
54.
55.
56.
57.
58.
Statewide Analysis, 86 J. Crim. Law & Criminology 392 (1996); Olatunde C.A. Johnson,
Disparity Rules, 107 Colum. L. Rev. 374, 402-05 (2007).
Poe-Yamagata & Jones, supra
Prevention, Juvenile Offenders and Victims: 2006 National Report, 188 (2006).
Poe-Yamagata & Jones, supra note 49, at 3.
See Casey Juvenile Justice Reform, supra note 3, at 15.
See Phillip Beatty, Amanda Petteruti, & Jason Ziedenberg, Justice Policy Institute, The
Vortex: The Concentrated Impact of Drug Imprisonment and the Characteristics of Punitive
Counties 7 (2007).
See Barbara Bennett Woodhouse, Youthful Indiscretions: Culture, Class Status, and the
Passage to Adulthood, 51 DePaul L. Rev. 743, 756-57 (2002).
Id. at 754.
Roper v. Simmons, 543 U.S. 551 (2005).
Casey Issue Brief, supra note 25, at 2-3.
Id. at 3.
33
1
Chapter 2
2
Professionals’ Responsibility to Treat Youth in
Juvenile Courts Fairly
Judges: Ensuring Fair and Impartial Courts
“I try to make it plain to everyone in my court that
everyone who enters is to be treated with respect.”1
—a juvenile court judge
Juvenile court judges play a critical role in ensuring a fair and impartial court process. The
National Council for Juvenile and Family Court Judges (NCJFCJ), the largest professional
organization of juvenile court judges, requires juvenile court judges to:
Ensure the juvenile delinquency courts are places “where all . . . participants are
treated with respect, dignity, and courtesy”;2
Develop and enforce “strict courtroom decorum and behavioral expectations for all
participants”;3
Ensure all youth who appear before them receive the legal and constitutional rights
to which they are entitled at every stage of court involvement;4 and
Provide all youth with access to counsel who are adequately trained and culturally
competent.5
responsibilities, require judges to be unbiased, fair, impartial, and objective and to ensure
their courtrooms are free from bias, prejudice, and harassment against all youth who appear before them.6 While these general prohibitions certainly apply to LGBT youth as well,
the American Bar Association’s Model Code of Judicial Conduct, which many states have
or engage in harassment, including but not limited to bias, prejudice, or harassment based
upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation
7
Under
the Code, judges also must “require lawyers in proceedings before the court to refrain from
manifesting [such] bias or prejudice, or engaging in harassment . . . against parties, witnesses, lawyers, or others.”8 Thirty-six states and the District of Columbia have adopted judicial
canons with similar explicit prohibitions on bias based on sexual orientation and gender.9 In
addition, some courts have adopted nondiscrimination policies. In New Jersey, for instance,
the state judiciary explicitly prohibits discrimination in any form against employees and
court users based on gender identity or expression and sexual orientation.10
35
Professionals’ Responsibility to Treat Youth in Juvenile Courts Fairly
All juvenile justice professionals have a role in ensuring that court-involved youth are
treated fairly. Practice standards and ethical guidelines, as well as various state statutes,
court rules, and case law, enumerate the responsibilities that juvenile justice professionals
owe to LGBT youth and non-LGBT youth alike.
Defenders: Protecting the Constitutional Rights of Their Clients
All youth in delinquency cases have a constitutional right to counsel who will zealously
defend them and protect their due-process rights.11 Juvenile defense attorneys have a
duty to:
HIDDEN INJUSTICE
Hold the juvenile justice system
accountable to their clients and
advocate for their fair and respectful treatment;12
Advocate for their clients’ expressed interests—not what
the attorney believes is in their
clients’ “best interests”—and
provide competent and diligent
representation;13
Provide vigorous representation
at every stage of juvenile delinquency proceedings;14 and
Ensure that advocacy on behalf
of LGBT clients addresses their
needs.15
Prosecutors: Pursuing Fair and Just Prosecution
The primary duty of the juvenile prosecutor is to seek justice by fully and faithfully representing the interest of the state “without losing sight of the philosophy and purpose of the
[juvenile] court.”16 Like other members of juvenile delinquency courts, juvenile prosecutors are required to take steps in carrying out their work to ensure that the juvenile justice
system treats all youth fairly and without discrimination.17 This means that juvenile prosecutors have a responsibility to:
Discharge their duties with fairness to all constituents;18
Ensure that discretionary decisions, such as whether to file a petition, transfer a case
to adult court, or offer a plea deal, are not inappropriately influenced by race or any
other impermissible factors;19 and
Consider the “special interests and needs of the juvenile to the extent that they can
do so without compromising [the safety and welfare of the community].”20
36
2
Probation: Ensuring Fair Case Processing and
Provision of Treatment
—Los Angeles County Probation Department’s handbook for youth
“
we are not different from anybody else.”22
—Yvonne, a 15-year-old Latina lesbian youth
Juvenile probation departments play a vital role in juvenile court proceedings by facilitating referral to treatment services that meet the unique needs of individual adjudicated
youth. Juvenile probation departments have a responsibility to take steps to ensure fair
case processing and treatment for youth of color and other minorities.23 Specifically, the
American Correctional Association’s Code of Ethics requires probation officers to:
Respect and protect the civil and legal rights of all probation youth;
Refrain from discriminating against any individual because of race, gender, creed,
national origin, religious affiliation, age, disability, or any other type of prohibited
discrimination; and
Respect, promote, and contribute to a workplace that is safe, healthy, and free of
harassment in any form.24
37
“You have the right to be safe and to be treated fairly, regardless of your race, religion,
national origin (what country you or your family came from), disability, sex (male, female,
transgender) or sexual orientation (straight, gay, lesbian, or bisexual).”21
Detention: Ensuring Safe and Nondiscriminatory
Treatment in Facilities
Juvenile detention facilities are required to provide adequate nutrition, health care, clothing, shelter, and education to all youth detained in their physical custody pending adjudication or awaiting placement.25 In providing these basic needs, detention workers have a
legal and ethical responsibility to ensure safety and fair treatment for all youth,26 including
protecting all youth in their care from physical, sexual, and emotional harm at the hands of
other youth or facility staff. The National Juvenile Detention Association (NJDA) provides
that detention workers must:
Not tolerate “discrimination . . . or any form of child abuse”;27
Refuse to remain silent when youths’ rights are violated and “speak on behalf of the
affected youths”;28 and
HIDDEN INJUSTICE
Respond in a timely and appropriate manner to all harassment and abuse in order to
alleviate conditions that could cause harm.29
38
2
1.
Anonymous juvenile judge comment, Survey for Judges: Lesbian, Gay, Bisexual and
Transgender Youth in Juvenile Delinquency Courts, online Equity Project survey.
2.
National Counsel of Juvenile and Family Court Judges, Juvenile Delinquency
Guidelines: Improving Court Practice in Juvenile Delinquency Cases, 123 (2005)
[hereinafter Juvenile Delinquency Guidelines].
3.
Id.
4.
Id. at 32.
5.
Id. at 25, 28.
6.
See, e.g., Alabama Judicial Inquiry Commission, Alabama Canons of Judicial Ethics,
and diligently.”).
7.
American Bar Association, ABA Model Code of Judicial Conduct, Rule 2.3(B) (2007)
(emphasis added).
8.
Id. at Rule 2.3 (C).
9.
The thirty-six states with judicial canons that include sexual orientation are: Alaska,
Arizona, California, Colorado, Delaware, Florida, Georgia, Hawaii, Indiana, Kansas,
Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New, Mexico, New York,
North Dakota, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Vermont,
Virginia, West Virginia, Wisconsin, and Wyoming. The fourteen states with judicial
canons that do not include sexual orientation are: Alabama, Arkansas, Connecticut,
Idaho, Illinois, Iowa, Louisiana, Michigan, North Carolina, Oregon, Pennsylvania,
South Carolina, South Dakota, and Washington.
10. Philip S. Carchman, Judiciary of the State of New Jersey, Policy Statement on Equal
available at http://www.judiciary.state.nj.us/eeo/October08PolicyStatement.pdf (“The
Judiciary respects the individual humanity and worth of each person who comes
in contact with the courts. Discrimination in any form based on a person’s gender
identity or expression is prohibited . . . The Judiciary is committed to treating all
employees and court users equally, with dignity and respect. Discrimination in any
form against an individual on account of his or her affectional or sexual orientation
is prohibited.”).
11. See generally In re Gault, 387 U.S. 1, 36-37 (1967) (requiring counsel for juveniles to
assist with problems of law, to make skilled inquiry into the facts, to insist upon
regularity of the proceedings, and to ascertain whether he has a defense and to
prepare and submit it); National Juvenile Defender Center & National Legal Aid
and Defender Association, Ten Core Principles for Providing Quality Delinquency
Representation Through Public Defense Delivery Systems 1 (2008) [hereinafter Ten Core
Principles]; Daniel J. Freed & Timothy P. Terrell, Institute of Judicial Administration-
39
Endnotes
American Bar Association Joint Commission on Juvenile Justice Standards, Juvenile
Justice Standards Relating to Interim Status: The Release, Control, and Detention
of Accused Juvenile Offenders Between Arrest and Disposition, 119 (1996); Juvenile
Delinquency Guidelines, supra note 2, at 122.
12. Ten Core Principles, supra note 11, at 3; NCJFCJ Juvenile Delinquency Guidelines, supra
note 2, at 25.
13. American Bar Association Center for Professional Responsibility, Model Rules of Professional Conduct, Rules 1.1- 1.3 (2009); Juvenile Delinquency Guidelines, supra note 2, at
30, 122.
14. Ten Core Principles, supra note 11, at 1, 3; Juvenile Delinquency Guidelines, supra note 2,
at 30-31.
HIDDEN INJUSTICE
15. Ten Core Principles, supra note 11, at 1.
16. James P. Manak, Institute of Judicial Administration-American Bar Association
Joint Commission on Juvenile Justice Standards, Juvenile Justice Standards Relating to
Adjudication, 263 (1996).
17. Id.
18. National District Attorneys Association, National Prosecution Standards, 11 (2nd ed.
1991), available at http://www.ndaa.org/pdf/ndaa_natl_prosecution_standards_2.
pdf [hereinafter National Prosecution Standards].
19. National District Attorneys Association, Resource Manual and Policy Positions on Juvenile Crime Issues, 8-9 (2002), available at http://www.ndaa.org/pdf/ndaa_resource_
manual_jj_crime_issues_2002.pdf.
20. National Prosecution Standards, supra note 18, at 250.
21. Los Angeles County Probation Department, Your Handbook of Rules and Rights 4
(2008), available at http://probation.co.la.ca.us/rar.pdf.
22. Equity Project focus group, Yvonne, a 15-year-old Latina, lesbian youth (May 4,
2008).
23. National Center for Juvenile Justice, Desktop Guide to Good Juvenile Probation Practice,
Revised
24. American Correctional Association, Code of Ethics (1994),
http://www.aca.org/pastpresentfuture/ethics.asp.
25. Youngberg v. Romeo, 457 U.S. 307, 315 (1982).
26. A.M. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 583, 585 (3rd Cir.
2004) (concluding that a lack of policies to address the safety and mental and
physical health needs of youth in detention facilities could lead to constitutional
violations); R.G. v. Koller
violated LGBT plaintiffs’ due process rights by allowing pervasive verbal, physical,
and sexual abuse persist); Alexander S. v. Boyd, 876 F.Supp. 773, 787 (D.S.C. 1995)
(stating that juveniles possess a clearly recognized liberty interest in being free from
40
2
unreasonable threats to their physical safety),
other grounds, 113 F.3d 1373 (4th Cir. 1997).
27. National Juvenile Detention Association, Code of Ethics, 3 (2009), available at http://
www.npjs.org/docs/NJDA/NJDA_Code_of_Ethics.pdf.
28. Id.
29. Id. See also A.M.,
indifference); R.G., 415 F.Supp.2d at 1158 (same).
41
Chapter 3
3
Common Misconceptions and Biases About LGBT
Youth in the Juvenile Justice System
—Tyler, a 22-year-old Native-American gay male youth
Although juvenile justice professionals have a responsibility to ensure that all youth are
treated fairly and appropriately,2
LGBT youth of all races and socioeconomic backgrounds in unique ways. Approximately
personnel as a “very serious” or “somewhat serious” problem.3 In focus groups, youth
or understand them because of their sexual orientation or gender identity.
Underlying the biased treatment of LGBT youth in the juvenile justice system are common
misconceptions about sexual orientation and gender identity. The stakes associated with
these misconceptions are high; the effectiveness of juvenile courts depends upon professionals making decisions about each youth based on an authentic understanding, free from
bias, about his or her individual needs and situation. Decisions driven instead by misconceptions undermine the goals of the system and deny youth their rights.
LGBT youth remain largely hidden in the juvenile justice system.
“I can honestly say that I have not come across LGBT issues. That doesn’t mean
they don’t exist, but no one has addressed them.”4
—a juvenile prosecutor
Until recently, LGBT youth have remained largely invisible in the juvenile justice system.
As one defender noted, “The court system, police, probation, and child welfare all are happy to pretend these kids don’t really exist.”5 One factor keeping LGBT youth invisible is
the system’s long-standing lack of awareness of and attention to this population. In delinquency courts, “sexual orientation is never brought to light,” according to one prosecutor.6
Professionals who have never been asked to pay attention to LGBT issues are unlikely to
recognize that some youth with whom they work are LGBT. For example, one judge stated,
“This is not our [the judges’] problem. I don’t really have anything to say about gay youth
in my courtroom. I don’t think there have been any that I am aware of.”7 His response is
particularly noteworthy because some of his colleagues reported that several LGBT youth
had been through the same court system in recent months.
MYTH: Few, if any, youth in the juvenile justice system are LGBT.
FACT: Approximately 13 percent of youth in juvenile detention facilities are LGBT,
according to a recent study.
43
Common Misconceptions and Biases About LGBT Youth in the Juvenile Justice System
I had relationships with other guys.”1
Another factor keeping LGBT youth hidden is that some youth choose not to disclose their
sexual orientation or gender identity to juvenile justice professionals for fear of drawing
unwanted attention to themselves, limiting their placement options, or suffering abuse
in their placements. One juvenile defense attorney estimated having had more than 70
HIDDEN INJUSTICE
out and are still very much afraid to raise that issue.”8 Similarly, Marlene Sanchez, Equity Project Advisory Committee member and executive director of the Center for Young
Women’s Development in San Francisco, explained that the court-involved girls in her
tions, including ours, not trusting us. They have had many experiences with social service
organizations where they’ve been lied to a lot. They are trying to protect themselves and
keep themselves safe.”9 As a result, she said that only about a quarter of girls who identify
as lesbian or bisexual feel comfortable revealing that information upon entering the program. Once program staff have built a relationship with the girls over time, they are more
willing to be open about their sexual orientation or gender identity.
Perceptions among juvenile justice professionals about the number of LGBT youth with
worked with at least a few LGBT youth over the past two years, and some professionals
reported more regular contact with LGBT youth. For example, one juvenile justice professional in the southern region of the country reported that in the preceding month alone, the
court in her jurisdiction had placed four transgender girls in the local detention facility.10
Approximately 20 percent of the more than 400 people surveyed, however, reported not
having worked with any LGBT youth in the last two years.
Although many juvenile justice professionals believed that they had not worked with
LGBT youth, emerging research indicates that substantial numbers of LGBT youth enter
the juvenile justice system across the country.11
Ceres Policy Research found that as many as 13 percent of youth in detention facilities
are lesbian, gay, bisexual, transgender, or questioning (LGBTQ).12 In comparison, most
researchers surveying youth in schools estimate that between 4 percent and 8 percent of
the overall youth population are LGBT.13 While further research is necessary, the Ceres
Lack of information about adolescents’ understanding of their own sexual
orientation and gender identity clouds perception.
Contributing to the circumstances keeping youth invisible is the misconception that adolescents are too young to know that they are LGBT. In focus groups, several youth who
44
that they were LGBT. Fourteen-year-old Adam said that detention staff “just couldn’t accept [me] being gay”14 and made comments to him such as, “Oh, you are young. You don’t
know what you want.”15 Another youth, Clarissa, said professionals questioned her overall trustworthiness because of her sexual orientation and gender identity. She explained,
“Most of the facility and court staff that I ran into did not believe that I was solid in my
sexuality, so the story that I was presenting [about my case] was not as credible.”16 As one
does not think LGB kids can know they are LGB, whereas they accept that kids know that
they are heterosexual.”17
MYTH: By virtue of their age, youth cannot know they are LGBT.
FACT: Individuals become aware of their sexual orientation and gender identity at
very young ages.
Adolescent development research
refutes these views and demonstrates that both sexual orientation and gender identity are
established at a very early age,
although it may take youth some
time to understand and become
comfortable with their identity.
Like heterosexual youth, lesbian,
gay, and bisexual youth become
aware of their sexual orientation
based on their thoughts and emotions often long before they have
fact, many youth report awareness of their sexual orientation by
18
by age three,19 and some youth self-identify as transgender as early as pre-school.20
21
In addition, the
latest research shows that children are “coming out” (or disclosing their sexual orientation
to others) at younger ages than in previous generations.22
45
3
What Does It Mean for Youth to be “Questioning” Their Sexual
Orientation or Gender Identity?
Youth who identify as “questioning” are in the process of actively exploring their sexual
orientation and/or gender identity and questioning cultural assumptions about their
identity. Many lesbian, gay, and bisexual people go through this process of questioning
before coming out.23
HIDDEN INJUSTICE
Identity development for youth is not a static process, and a young person’s sexual oritionships self-identify as lesbian, gay, or bisexual.24 Some youth may fear repercussions
undergoing a typical adolescent process of trying to discover who they are.25 Similarly, not
all youth who have same-sex attractions or who identify as lesbian, gay, or bisexual during
adolescence will continue to do so in adulthood. The fact that some youth might explore
different identities as they navigate adolescence does not render their attractions and
feelings any less legitimate.26
Professionals’ failure to differentiate between sexual orientation and gender
identity impacts youth experiences.
“Society doesn’t recognize what the difference is between a gay person and a
transgender person.”27
—Luke, 15-year-old Asian-American female-to-male transgender youth
and accepting of transgender identity than lesbian, gay, and bisexual identity and sometimes confuse sexual orientation and gender identity. In focus groups, all of the transgender youth expressed frustration about the ignorance of the juvenile justice professionals
they encountered. As Luke recounted, “[When my attorney] saw the letter from my doctor
28
MYTH:
FACT:
Being transgender is the same as being
gay.
Gender identity is different from sexual
orientation.
Several youth said they wished professionals understood basic terminology and the differences between gay and transgender identity. For example, Lily, who is a male-to-female
46
transgender 17-year-old, said she often encountered juvenile justice professionals who
“put me in the gay category.” Although Lily explained to them, “I’m not gay, I’m transgender,” her attempts to educate them were unsuccessful.29
Sexual orientation and gender identity are not the same. Sexual orientation describes a
person’s romantic and physical attraction to members of the same or different sex. Gender identity refers to a person’s internal, deeply felt sense of being male or female.30 Most
people’s gender identity corresponds with their birth sex and physical anatomy; however,
transgender people’s gender identity differs from their birth sex. Accordingly, a transgender girl is a young person whose birth sex was male but who understands herself to be,
and desires to live her life as, a female. Similarly, a transgender boy is a young person
whose birth sex was female but who understands himself to be, and desires to live life as,
a male. Most gender-nonconforming youth do not identify as transgender, however. While
some (though certainly not all) lesbians dress and express themselves in a masculine manner and some gay boys dress and express themselves in a feminine manner, these youth
are not necessarily transgender.
47
3
Practice Tips: Names and Pronouns for Transgender Youth
One important aspect of gender identity expression is the name and pronoun by which an
individual refers to himself or herself. The following list provides tips for professionals on
how to demonstrate respect for a youth’s gender identity through appropriate use of name
and pronoun:
Juvenile justice professionals should call transgender youth by the name and pronoun
that the youth prefers, even if it differs from his or her legal name;
If unsure of a youth’s gender identity, court professionals should simply ask the youth
about his or her gender identity and what pronoun and name the youth uses;
Court professionals should never refer to a transgender youth as “he-she” or “it”; and
HIDDEN INJUSTICE
All court-related records can include reference to a youth’s legal name, but should use
the youth’s preferred name and pronoun throughout.
Some professionals wrongly believe they can change a youth’s sexual
orientation or gender identity.
MYTH: Sexual orientation and gender identity are matters of personal choice, so
youth can choose not to be LGBT.
FACT:
Sexual orientation and gender identity are deep-seated, inherent aspects of
personal identity; attempts to change either are both futile and harmful to
youth.
One misconception that emerged in interviews is that LGBT youth choose to be LGBT, in
some cases as an act of rebellion or an attempt to get attention. As Equity Project Advisory
Committee (EPAC) member and adolescent psychology expert Marty Beyer explains, professionals who view sexual orientation and gender identity as matters of choice may try to
coerce LGBT youth to stop being gay or attempt to “persuade [them] that they would have
a better life and could avoid harassment if they were not LGBT.”31 Many youth from the
focus groups said they had been asked questions by juvenile justice professionals such as
“Why do you want to be like that?” and “Can’t you just stop acting gay?”
ual orientation is a complex interaction of biological and environmental factors.32 Even
though some people may choose not to act on their feelings or self-identify as lesbian, gay,
or bisexual, individuals with same sex attractions cannot change their sexual orientation
any more than heterosexual people can.33
48
Similarly, consensus exists among the health professions that a person’s gender identity is
a deep-seated, inherent aspect of human identity and efforts to change gender identity are
34
In the past, some professionals tried unsuc35
cation. Today, efforts to alter a person’s core gender are viewed as both futile and unethical.
The refusal to respect transgender youth is particularly pervasive
among professionals.
MYTH: Transgender youth are just
“acting out” and trying to get
attention through gender nonconforming clothing, hairstyle,
and name choices.
FACT:
Medical research demonstrates
the importance of allowing
transgender youth to express
their core gender identity.
nile justice professionals when they wear clothing or exhibit mannerisms and behaviors
that are inconsistent with their birth sex. Professionals often mistakenly believe that these
youth are acting out or seeking attention, rather than expressing a fundamental aspect of
their identity. Medical research demonstrates that disrespecting, punishing, or prohibiting
transgender youth from expressing their core gender identity causes them great distress.36
Some transgender people experience depression or severe emotional distress because their
bodies do not match their gender identities. The diagnosis of gender identity disorder
(GID), which can be made by a knowledgeable mental health professional, refers to “a
birth] sex or sense of inappropriateness in the gender role of that sex.”37 Safe and effective
treatments are available for individuals who meet the diagnostic criteria for GID.38 When
transgender youth do not receive appropriate treatment or support for GID, serious negative consequences can result, including clinical depression, suicide attempts, and problems
with relationships, school, and work.39
The World Professional Association for Transgender Health (WPATH) has developed a
document, “Standards of Care for Gender Identity Disorders,”40 which provides guidance to professionals on supporting transgender youth and adults through the process
of recognizing their gender identity and “transitioning.” The term transition describes
both the process and time period during which a transgender person starts living in line
with his or her core gender. This can include changing one’s style of dress, hairstyle,
and other aspects of physical appearance and using a new name (and pronoun), as
well as seeking medical treatment (such as hormone therapy and/or surgery) to change
one’s body.
49
3
Care” and the medical and mental health professions for supporting transgender youth:
U Names and pronouns.
recommend that professionals support transgender youth in expressing their gender
through using names and pronouns associated with their core gender identity.41
Many transgender youth in the focus groups expressed frustration, however, that
them by their chosen name and preferred pronoun. For example, Kiana said that her
boy’s name], because this is what you are.’ ”42
HIDDEN INJUSTICE
Likewise, almost every professional
interviewed for this project consistently
referred to transgender youth by legal
birth sex, rather than the name and
pronoun the youth preferred. In addition,
some trivialized nonconforming gender
identities; for example, one professional
dismissively referred to a youth that he
“the boy who wears dresses.”43
U Clothing, appearance, and mannerisms. Like names and pronouns, clothing is
44
According to the WPATH’s Standards of Care,
wearing clothing appropriate to one’s gender identity helps transgender people
45
A few judges who were interviewed understood this
and changed dress code policies to allow gender nonconforming dress (e.g., allowing boys to wear earrings). Several interviewees, however, said juvenile courts
discourage or prohibit expressions of gender nonconforming identity. One defender explained that the system “just kind of makes it known that when you come to
court you have to wear the clothing that [is associated with] your birth gender.”46
Some of the interviewees themselves stated that youth in court should dress to
conform to their biological sex because not doing so contributes to the “alreadytense environment” and “causes confusion.”47
“When I would dress like a boy, my case would take longer and longer. For my last court
”57
—Kyle, a 17-year-old female-to-male transgender youth
U Access to medical care. Once a transgender youth who is diagnosed with GID has
begun puberty, a knowledgeable medical care provider can assess whether medical
treatment to enable the youth to physically transition is appropriate.48 The purpose
50
of medical intervention for an individual with GID is to help the individual bring
tion to achieve lasting “personal comfort with the gendered self” and “maximize
49
National organizations
50
such as the American Medical Association (AMA) and the American Psychological Association (APA)51 support these treatments, which they have found to be
safe and effective.52 According to the APA, GID treatments are not “cosmetic” or
“experimental” but rather are a “medical necessity . . . for appropriately evaluated
individuals.”53
Lack of access to medical care is a particular problem for transgender youth
in detention and correctional facilities (see Chapter 8).
standing about the medical needs of transgender youth. For example, Kyle, a 17-year old
transgender female-to-male youth, asked his attorney to secure a court order that would
allow him to obtain the hormone treatment his doctor recommended. His attorney, who assumed he was a lesbian and admitted to the youth, “I’m ignorant,” offered little help.54 The
judge in Kyle’s case was also dismissive, repeatedly referring to prescription hormones
as “drugs” as if to equate them to illicit narcotics. Ultimately, Kyle was unable to get the
health care he needed until he was released from state custody at age 18.
Transgender youth who lack access to appropriate medical care sometimes buy hormones
on the street from individuals who are not physicians. Injecting hormones without medical supervision can cause serious medical conditions, including HIV infection from using dirty needles and other life-threatening complications that result from inappropriate
dosages or poor quality hormones.55 In addition, some youth engage in prostitution in
exchange for street hormones or to earn enough money to buy hormones.56 To prevent
transgender youth from these risks, the juvenile justice system should provide them with
access to knowledgeable health care providers, for treatments deemed medically necessary. Accessing appropriate medical care may require a court order.
Some professionals do not understand that LGBT identity represents
a normal aspect of human experience.
MYTH: LGBT youth are mentally ill
and sexually predatory.
FACT: LGBT identity is normal and
pathology.
Arguably the most detrimental myth about LGBT youth is that which equates LGBT
identity with pathology. Despite the clear consensus among all mainstream health and
mental health professions that LGBT identity represents a normal aspect of human ex-
51
3
perience,58 numerous interviewees expressed concern that some juvenile justice professionals view LGBT youth as mentally ill or sexually predatory. In at least two jurisdictions, every youth “suspected” of being LGBT is required to undergo a mental health
evaluation. In a case involving a young lesbian who assaulted her family after her family had objected to her sexual orientation, the judge explained that “the whole case was
about sensationalizing lesbians. . . . [The prosecution] played it like she was a deranged
lesbian lunatic.”59
HIDDEN INJUSTICE
Youth in the Equity Project focus groups reported having similar experiences of being
treated as crazy, dangerous, or unstable in delinquency courts. One young bisexual man,
Sam, explained in frustration, “In juvenile hall [staff] ask you, ‘Have you been molested,’
and then they say, ‘Oh, that’s why you are gay.’ Why can’t I just be myself and people be
okay with that?”60
Over 35 years of objective
strate that lesbian, gay, and
bisexual identities fall within the range of normative
sexual development and are
not associated with mental
disorders or emotional or
social problems,61 or caused
by prior sexual abuse or
other trauma.62 (In actuality, many LGBT youth experience sexual abuse and
trauma after coming out to
individuals in their families, communities, schools,
and other institutions.63)
that no inherent connection exists between an individual’s sexual orientation
and the likelihood that he
or she will commit a sexual
offense. Studies using a variety of psychological measures indicate that gay people are not more likely than heterosexuals “to possess any
psychological characteristics that would make them less capable of controlling their
sexual urges, refraining from the abuse of power, obeying rules and laws, interacting effectively with others, or exercising good judgment in handling authority.”64 In
addition, transgender individuals do not have serious underlying psychopathology
52
3
Spotlight on Reform: Training Juvenile Justice Professionals
on LGBT Issues
Acknowledging the need to provide fair and respectful services to LGBT youth, some jurisdictions have implemented comprehensive training for juvenile justice professionals on
issues that affect LGBT youth. Approximately 23 percent of the more than 400 people
surveyed reported that their jurisdictions had offered training that addressed LGBT issues
within the last two years. While these developments are a sign of progress, more training is
needed to ensure professionals across the country are prepared to communicate effectively with LGBT youth, respond to their individual needs, and provide appropriate rehabilitation
and treatment services. In fact, more than 80 percent of Equity Project survey respondents,
that they would like to receive training on working with LGBT youth.
A few examples of jurisdictions that are effectively implementing trainings on LGBT youth
follow:
Hawai‘i. As a result of the 2007 settlement in the civil rights lawsuit R.G. v. Koller, which
involved the abuse and harassment of LGBT youth in Hawai‘i’s correctional facility, every
staff person at the juvenile correctional facility and the staff of youth-serving agencies
participated in comprehensive one-day mandatory trainings on working with LGBT youth.
Although not required by the settlement terms, the Chief Judge of the Family Court also
agreed to implement a nondiscrimination policy for the detention facility and staff of the
though Hawai‘i is a small state with only one juvenile correctional facility and one main
juvenile detention center, at the time of this report’s publication, Hawai‘i was the only state
to implement nondiscrimination policies in all of its juvenile facilities and train a range of
system professionals on LGBT youth. EPAC member Dr. Marty Beyer developed the curriculum and delivered the trainings with another EPAC member, Dr. Bob Bidwell, and local
youth advocates.
New York. EPAC member Judge Paula Hepner formed in 2004 the Family Court Advisory
Council’s Juvenile Justice Subcommittee Working Group on LGBTQ Youth in New York City.
The workgroup, which she chairs, brings together prosecutors, judges, Administration for
Children’s services staff, detention agencies, Department of Juvenile Justice staff, proand implemented a training program for Family Court professionals in each New York City
borough. The group has also provided training for judges at a local judicial training institute and summer Judge Camp. In addition, last year, the workgroup provided training for
prosecutors focused on helping them understand the full context in cases involving LGBT
53
years have found that “[t]he incidence of reported psychiatric problems [for transgender people undergoing treatment] is similar to that seen in the general population.”65
youth. Topics included working on cases in which parents are the complainants, displaying sensitivity to the victims of hate crimes, and interviewing parents, youth, and others
in an inclusive and respectful manner. At the time of publication, the working group was
also training probation department staff and planning to present to the panel of assigned
counsel later in the year.
HIDDEN INJUSTICE
Utah. The Utah Pride Center is working directly with Utah’s Juvenile Justice System (JJS) and the court to educate court staff and juvenile justice personnel on
LGBT youth issues. After a youth advocate called the center requesting resources to
support a transgender youth in a JJS detention facility, the center persuaded
the JJS training manager and the Department of Children and Family Services
(DCFS) to collaborate on training JJS and DCFS staff. The Pride Center has already
delivered LGBT youth cultural competence training to all staff working in JJS in every
region of Utah. Although not mandatory, the trainings were consistently well attended. The Pride Center is developing an advanced curriculum and will start trainings
on these advanced topics for JJS staff in late 2009. In addition, the Pride Center is
developing an LGBT cultural competence training for court staff for late 2009.
Utah’s governor and the head of the State Department of Human Services have
both approved the curricula.
54
3
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Equity Project focus group, Tyler, a 22-year-old Native-American gay male youth
(Apr. 17, 2008).
National Council of Juvenile and Family Court Judges, Juvenile Delinquency
Guidelines: Improving Court Practice in Juvenile Delinquency Cases, 25 (2005)
Twenty-seven percent of those surveyed thought anti-LGBT bias of court personnel was a very serious problem for LGBT youth. Thirty-eight percent thought it
was somewhat of a problem. This view was not universal. For example, one judge
noted, “In 23 years I have not seen any bias of any substance at all in this topic arena.
. . . No one is picking on these kids, and they are not being cast in with a bunch
of rednecks who hate them. We literally do not see this bias you seem to want to
, Survey for Judges: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Delinquency Courts, online Equity Project survey [hereinafter Survey for Judges]. Similarly, another judge commented, “I can’t see
a problem. The assertion that there must be one is absurd.” Id. In addition, a prosecutor who declined to complete the survey told the Equity Project that “by creating this
survey, and looking for issues that do not exist, you are placing these individuals as
a group into a spotlight that they most likely do not wish to experience.”Anonymous
juvenile prosecutor comment, Survey for Prosecutors: Lesbian, Gay, Bisexual and
Transgender Youth in Juvenile Delinquency Courts, online Equity Project survey
[hereinafter Survey for Prosecutors].
Anonymous juvenile prosecutor comment, Survey for Prosecutors, supra note 3.
Anonymous juvenile defender comment, Survey for Defenders: Lesbian, Gay,
Bisexual and Transgender Youth in Juvenile Delinquency Courts, online Equity
Project survey [hereinafter Survey for Defenders].
Equity Project interview with a juvenile prosecutor (July 26, 2007).
Equity Project interview with a juvenile judge (July 26, 2007).
Equity Project interview with a juvenile defender (July 11, 2007).
Equity Project interview with Marlene Sanchez (Aug. 28, 2008).
Equity Project interview with a juvenile justice professional (July 26, 2007).
See, e.g., Shannan Wilber, Caitlin Ryan, & Jody Marksamer, Child Welfare League of
America Best Practice Guidelines: Serving LGBT Youth in Out-of-Home Care (2006);
Randi Feinstein, et al., Justice for All? A Report on Lesbian, Gay, Bisexual, and
Transgendered Youth in the New York Juvenile Justice System (2001); Angela Irvine,
Ceres Policy Research, Youth Hype Drug and Alcohol Use Survey: Summary of Findings
Related to LGBQ, Latino, and Foster Youth in Santa Cruz, CA
with authors); Angela Irvine, Ceres Policy Research, The Inappropriate Use of Secure
Detention for Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Youth (2009),
presented at the Columbia University Gender on the Frontiers Symposium (April
Inappropriate Use of Secure
Detention] Results of the 2009 Ceres Policy Research study will appear in 19 Columbia
Journal of Gender & Law (forthcoming 2010).
Inappropriate Use of Secure Detention, supra note 11.
See Human Rights Watch, Hatred in the Hallways: Violence and Discrimination Against
55
Endnotes
HIDDEN INJUSTICE
Lesbian, Gay, Bisexual and Transgender Students in U.S. Schools 18 (2001); Massachusetts
Department of Elementary and Secondary Education, Massachusetts Youth Risk Behavior
Survey 67 (2007) http://www.doe.mass.edu/cnp/hprograms/yrbs/05/default.html.
The Massachusetts study was conducted in 51 schools; results are based on the responses of 3,522 students. It found that 4 percent of ninth through twelfth graders that
participated described themselves as LGB, and 5 percent of students reported having
same-gender physical contact.
14. Equity Project focus group, Adam, a 14-year-old African-American, gay male youth
(May 8, 2008).
15. Id.
16. Equity Project focus group, Clarissa, under 18 years old, genderqueer youth (June 2,
17. Equity Project interview with a juvenile court judge (Sep. 25, 2007).
18. Caitlyn Ryan & Rafael M. Diaz, Family Responses as a Source of Risk and Resiliency for
LGBT Youth, presentation at the pre-conference Institute on LGBTQ Youth, Child
Welfare League of America 2005 National Conference, Washington, D.C. (2005).
19. Gerald P. Mallon & Teresa DeCrescenzo, Transgender Children and Youth: A Child Welfare Practice Perspective, 85 Child Welfare 215, 218 (2006); Wilber et al., supra note 11,
at 2.
20. Stephanie Brill & Rachel Pepper, The Transgender Child: A Handbook for Families and
Professionals 16-17 (Cleis Press Inc. 2008).
21. Ryan &Diaz, supra note 18.
22. Id.
23. Id.
24. Caitlyn Ryan, LGBT Youth: Health Concerns, Services and Care, 20 Clinical Research &
Regulatory Affairs 137, 139 (2003).
25. Caitlyn Ryan & Donna Futterman, Lesbian & Gay Youth: Care & Counseling 9
(Columbia University Press 1998).
26. American Psychological Association, Answers to Your Questions: For a Better
Understanding of Sexual Orientation & Homosexuality 3-4 (2008), available at
http://www.apa.org/topics/sorientation.pdf [hereinafter Answers About Sexual
Orientation].
27. Equity Project focus group, Luke, a 15-year-old Asian-American, female-to-male
28. Id.
29. Equity Project focus group, Lily, a 17-year-old Latina and white, male-to-female
30. American Psychological Association, Answers to Your Questions About Transgender
Individuals and Gender Identity 1-2 (2006), available at http://www.apa.org/topics/
Gender3.pdf.
31. Equity Project interview with Marty Beyer, Ph.D. (Nov. 27, 2007).
56
32. Barbara L. Frankowski, Sexual Orientation and Adolescents, 113 Pediatrics 1827, 182732 (2004), available at http://pediatrics.aappublications.org/cgi/reprint/113/6/1827;
Answers About Sexual Orientation, supra note 26, at 2; American Psychiatric
Association, Gay/Lesbian/Bisexuals,
http://healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx [hereinafter
Gay/Lesbian/Bisexuals].
33. See American Psychological Association Task Force on Appropriate Therapeutic
Responses to Sexual Orientation, Report of the Task Force on Appropriate Therapeutic
Responses to Sexual Orientation 35-41(2009), available at http://www.apa.org/pi/lgbc/
publications/therapeutic-response.pdf [hereinafter Task Force Report on Therapeutic
Responses]; American Psychological Association, APA Help Center: Sexual Orientation
and Homosexuality 1 (2009) http://www.apahelpcenter.org/articles/pdf.php?id=31
[hereinafter Sexual Orientation & Homosexuality].
34. Gianna E. Israel & Donald E. Tarver II, Transgender Care: Recommended Guidelines,
Practical Information, and Personal Accounts 134-5 (Temple University Press 1997);
Gerald P. Mallon, Practice with Transgendered Children, in Social Services with
Transgendered Youth 49, 55-6 (Gerald P. Mallon, ed., 1999).
35. See id.
36. Mallon, supra note 34, at 51; Israel & Tarver, supra note 34, at 134-5; Brill & Pepper,
supra note 20, at 74-5; Walter Meyer III et al., The Harry Benjamin International Gender
Dysphoria Association’s Standards of Care for Gender Identity Disorders 8-9 (6th ed. 2001)
[hereinafter Standards of Care]
37. American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 576, 581 (4th ed., text revision 2000) [hereinafter APA, DSM-IV-TR].
38. See generally Standards of Care, supra note 36; Walter O. Bockting & Eli Coleman, A
Comprehensive Approach to the Treatment of Gender Dysphoria, in Gender Dysphoria:
Interdisciplinary Approaches in Clinical Management 131 (W.O. Bockting & E. Coleman
eds., 1992).
39. APA, DSM-IV-TR, supra note 37, at 578; Israel & Tarver, supra note 34, at 132-3.
40. See Standards of Care, supra note 36. The Harry Benjamin International Gender
Dysphoria Association changed its name to the World Professional Association for
Transgender Health in 2006.
41. Id. at 9; see also Teresa DeCrescenzo & Gerald P. Mallon, Serving Transgender Youth:
The Role of the Child Welfare System 19 (Child Welfare League of America 2000).
42. Equity Project focus group, Kiana, a 16-year-old multiracial male-to-female
43. Equity Project interview with a detention worker (July 26, 2007).
44. Brill & Pepper, supra note 20, at 94.
45. See Standards of Care, supra note 36, at 12.
46. Equity Project interview with a juvenile defender (July 5, 2007).
47. See, e.g.,
48. See Standards of Care, supra note 36, at 9-11.
49. Id. at 1.
57
3
50. See American Medical Association, “Resolution 122: Removing Financial Barriers to
Care for Transgender Patients” (2008) [hereinafter AMA Resolution 122].
51. American Psychological Association, “Policy Statement: Transgender, Gender Identity, & Gender Expression Non-Discrimination,”(adopted Aug. 2008),
http://www.apa.org/pi/lgbc/policy/transgender.html [hereinafter APA Transgender
Policy Statement].
52. See AMA Resolution 122, supra note 50, at 2, n. 7; APA Transgender Policy Statement,
supra note 51. See also World Professional Association for Transgender Health,
HIDDEN INJUSTICE
Insurance Coverage in the U.S.A.,” 2 (2008).
53. APA Transgender Policy Statement, supra note 51.
54. Equity Project focus group, Kyle, a 17-year-old white bisexual female-to-male
55. Mallon & DeCrescenzo, supra note 19, at 224-225; Wilber et al., supra note 11, at 58.
56. Id. See also Rebecca Klein, Group Work Practice with Transgendered Male to Female Sex
Workers, in Social Services With Transgendered Youth, 95, 96-9 (Gerald P. Mallon, ed.,
1999).
57. Equity Project focus group, Kyle, a 17-year-old white bisexual female-to-male
58. See e.g., Task Force Report on Therapeutic Responses, supra note 33, at 11; American
Academy of Child & Adolescent Psychiatry, Facts For Families: Gay, Lesbian, and Bisexual Adolescents (2006), http://www.aacap.org/page.ww?section=Facts%20for%20
Families&name=Gay,%20Lesbian%20and%20Bisexual%20Adolescents; Sexual Orientation and Homosexuality, supra note 33, at 2; American Medical Association, Resolution
506: Policy Statement on Sexual Orientation Reparative (Conversion) Therapy (April 2000),
http://www.ama-assn.org/meetings/public/annual00/reports/refcome/506.rtf.
59. Equity Project interview with a juvenile court judge (Sep. 25, 2007).
60. Equity Project focus group, Sam, an 18-year-old African-American-multiracial,
bisexual male youth (May 5, 2008).
61. See Task Force Report on Therapeutic Responses, supra note 33, at 1-2, 11; Sexual Orientation and Homosexuality, supra note 33 at 2; Gregory M. Herek & Linda D. Garnets,
Sexual Orientation and Mental Health, 3 Ann. Rev. Clinical Psychol. 353, 359 (2007).
62. See Gay/Lesbian/Bisexuals, supra note 32 (According to the American Psychiatric Association, sexual abuse does not appear to be more prevalent among children who
grow up to identify as lesbian, gay, or bisexual than it does for their heterosexual
counterparts.)
63. Ritch C. Savin-Williams, Verbal and Physical Abuse as Stressors in the Lives of Lesbian, Gay
Male, and Bisexual Youths: Associations with School Problems, Running Away, Substance
Abuse, Prostitution, and Suicide, 62 J. Consult. & Clin. Psychol. 261, 263 (1994); Meg
Earts, Stressors in the Lives of GLBTQ Youth, 14:4 Transitions 1, 3 (June 2002), available at
http://www.advocatesforyouth.org/storage/advfy/documents/transitions1404.pdf.
64. Gregory M. Herek, Facts About Homosexuality and Child Molestation, http://
psychology.ucdavis.edu/rainbow/html/facts_molestation.html; Linda Goldman,
Coming Out, Coming In: Nurturing the Well-Being and Inclusion of Gay Youth in
Mainstream Society 42-3 (Routledge 2008); Nathaniel McConaghy, Paedophelia: A
58
Review of the Evidence, 32 Austl. & N.Z. J. Psychiatry 252, 259-60 (1998); Carol Jenny et
al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 Pediatrics 41, 43-4 (1994).
65. Collier M. Cole, Michael O’Boyle, Lee E. Emory, & Walther J. Meyer III, Comorbidity
of Gender Dysphoria and other Major Psychiatric Diagnoses, 26 Archives of Sexual
the span of 13 years); George R. Brown, Transvestism and Gender Identity Disorder in
Adults, in Treatments of Psychiatric Disorders, Third Edition, 2034-35 (Glen O. Gabbard,
M.D. ed., 2007).
59
3
Chapter 4
4
“My social worker is the best thing in my life. When my social worker said it is in the law
book that you cannot be punished or disrespected for being gay, it gave me power. That is the
best thing my social worker and judge did for me.”1
—Brianna, 17-year-old black-Asian lesbian youth
Chapter 3, “Common Misperceptions and Biases About LGBT Youth in the Criminal Justice System,” describes commonly held misconceptions about LGBT youth. When juvenile
justice professionals make decisions related to arrest, charging, adjudication, and disposition based on these misconceptions, the practical effect is to punish or “criminalize” LGBT
adolescent sexuality or gender identity.
Police Targeting and Abuse of LGBT Youth
“If there is a condom on you, the cops will say [you’re involved in] prostitution.”2
—Jason, 22-year-old white and Latino gay male youth
juvenile justice system, yet they do not always apply this discretion fairly. According to a
selectively enforce laws relating to public sexual expression or conduct and minor “quality
of life” offenses, such as loitering, public drunkenness, public urination, and littering.3 In
addition, police are more likely to abuse LGBT youth, particularly transgender youth and
LGBT youth of color, than LGBT adults.4
spondents indicated that police mistreatment was a “very serious” or “somewhat serious” problem for LGBT youth.5 Several interviewees also agreed that police in their jurisdiction often target LGBT youth. Some believed that police were more likely to arrest
and charge LGBT youth for crimes because “they equate homosexuality with deviancy.”6
juveniles in arrest-type situations, the police normally assume that their LGBT status
7
In focus groups,
youth described experiencing such police harassment. For example, 16-year-old Yvette
described a disturbing encounter that she and her friends had with the police. When
ing.” In response, the police pepper-sprayed and arrested her. Yvette concluded that
“the whole situation happened because we were gay.”8 Another youth, Russell, who is
bisexual, reported:
to the scene and they just kind of went off to the side and started talking about it.
He came back and he patted me down and threw me in the car and told me I was
going to jail. The whole way to jail he kept telling me I was sick and disgusting.9
61
Attempts to Change, Control, or Punish LGBT Adolescent Sexual Orientation and Gender Identity
Attempts to Change, Control, or Punish LGBT
Adolescent Sexual Orientation and Gender Identity
plained, “[There are] popular streets that are for trans [youth] and police recognize that.
. . . Cops will stop you and ask what you are doing there. . . . The cops will keep asking,
‘You’re working, right?’ ”10
he was walking on the street, dressed in drag (i.e. wearing a wig, dress, make-up, etc.), and
was suspicion of soliciting sex. . . . I had to show him evidence that I was going to a drag
show before they let me go. . . . Whenever I would dress up in drag, [the police harassment]
was horrible.”11
HIDDEN INJUSTICE
In some instances, transgender youth reported police openly mocking them in an attempt
to provoke a response. One youth, Kyle, remarked that police have “no respect” for transgender youth: “I think they purposely call you . . . by your biological sex just to mess with
you and make you angry so they have a reason to take you in.”12 Another transgender
youth, Lily, described the following incident:
ing] “What is he?” I could hear them. The cops were calling me “he-she.” And I
couldn’t talk back to the cop. I didn’t have that ability. And I felt if I talked back to
the cop it would make my situation worse. The cops shouldn’t make fun of people
like that. It was very hurtful.13
Overcharging LGBT Youth with Sex Offenses
“If it’s two boys and they’re both young or it’s two girls, there’s a tendency to assume it’s
abuse. [With] opposite genders they’re more likely to say ‘Well, you know, they’re experimenting.’ [With same-sex behavior] there’s a tendency to put the worst spin on it.”14
—a juvenile defender
In every state, age-of-consent laws prohibit sexual activity with youth under a certain
age based on the presumption that youth do not have the capacity to give consent.15 In
many states, these laws apply to consensual sexual activity between youth of similar
ages who are both under the age of consent.16 These laws are not always applied evenly,
however. Youth in state custody, youth involved in interracial relationships, and LGBT
youth are more likely to be prosecuted for age-appropriate consensual sexual activity
than other youth.17 In 29 states, an adjudication for a sex offense subjects a youth to reglife opportunities.18
Several defenders who were interviewed had represented LGBT youth who were charged
with consensual sex offenses under circumstances in which they believed heterosexual
youth would most likely not have been charged. In these cases, the defenders expressed
concern that prosecutors had pursued these cases against their LGBT clients more vigorously than the cases merited. In one such case, two boys were prosecuted for having
62
consensual oral sex in the back of a classroom. The defense attorney for one of the boy’s explained, “They both got hammered . . . It was clearly the case that the prosecutor wouldn’t
give the kid a deal because it was a “gay” crime in a school. . . . I think [straight youth]
would have gotten a better deal.”19
In some such cases, defenders believed that the parents of alleged offenders or victims
encouraged the prosecutions because they viewed adolescent same-sex sexual conduct as
“abhorrent.”20 As one defender put it, “In many households, the idea of consensual sex
between same-sex kids just freaks everybody out.”21 Another defender agreed:
little Jimmy, they just don’t know what to do. People seem to be more hysterical about that.22
As a result, parents sometimes turn to the courts because “[t]here’s a sense the court can
control the sexuality of the children [by bringing] the hammer down.”23
Inappropriate and Harmful Dispositions
“Gay youth stay in residential or corrections sex offender programs longer, and
their normal behavior of being attracted to a same-sex partner
is seen as offender behavior.”24
The National Council for Juvenile and Family Court Judges (NCJFCJ) Delinquency Guidelines provide that juvenile delinquency courts must ensure that each disposition is “in line
with the circumstances of the individual offense” and “with dispositions of similar offenses” and “minimizes the possibility of bias.”25 Judges should order only those services
that have been shown to be effective at producing “positive behavior change in delinquent
youth and reduc[ing] recidivism.”26
times order LGBT youth to undergo harmful and inappropriate services based on biased
views about sexual orientation and gender identity.
Unnecessary Sex Offender Treatment
Many interviewees and survey respondents said that even LGBT youth with no sex offense history are ordered to submit to risk assessments designed to predict the likelihood
of future sex offending and undergo sex offender treatment even when no indications
of risk exist. Miscategorizing youth as sex offenders can have seriously damaging effects. One youth, Adam, said that the prosecutor in his case argued in court that he
should be placed in a more restrictive setting for high-risk youth “so [he] won’t become
a pedophile.”27 Another defender described a transgender client who showed no aggres-
63
4
sion and committed no sexual offenses, yet the judge inexplicably “sent the kid to the
center where we send deviant youth who are likely to commit sexual offenses against
children.”28 Youth labeled as sex offenders may also be subject to longer stays in out-ofhome placements. As one young man, Dale, explained, he tried to tell the judge that he
was gay, by saying, “I’ll never stop liking boys.” The judge thought he meant “I’ll never
stop offending against boys.”29 As a result, the judge did not give him an early release
HIDDEN INJUSTICE
Even for those youth whose underlying offense involved sexual behavior, courts should
exercise caution before ordering youth to restrictive placements for high-risk sex offenders.
The NCJFCJ Delinquency Guidelines explain that some sex offenses are “youthful exploration or indiscretions.” When youth act out of simple curiosity or in reaction to abuse, “it
is very important for the juvenile justice system not to harm the child further by inadvertently putting the youth together with serious and aggressive sexual offenders.”30
Reparative Therapy
Several interviewees reported that courts had also ordered LGBT youth to undergo counseling to address—and sometimes to change—their “sexual identity confusion” or “gender
confusion.”31 Every major health and mental health organization, including the American
Medical Association, American Psychological Association, American Academy of Child
and Adolescent Psychiatry, American Counseling Association, and American Psychoanalytic Association, has condemned all forms of such counseling, often referred to as “reparative therapy.”32
Policy Statements from the Medical and Mental Health Professions
The American Medical Association opposes “any psychiatric treatment, such as ‘reparative’
or ‘conversion’ therapy, which is based upon the assumption that homosexuality per se is
a mental disorder or based upon the a priori assumption that the patients should change
his or her homosexual orientation.”33
The American Academy of Child and Adolescent Psychiatry notes, “Parents need to clearly
understand that [homosexual] sexual orientation is not a mental disorder. . . . Therapy difor an unwilling teen. It may create more confusion and anxiety by reinforcing the negative
thoughts and emotions with which the youngster is already struggling.”34
The American Counseling Association “opposes the promotion of ‘reparative’ therapy as a
cure for individuals who are homosexual.”35
The American Psychoanalytic Association believes that “[p]sychoanalytic technique
does not encompass purposeful efforts to ‘convert’ or ‘repair’ an individual’s sexual
orientation.”36
64
In particularly egregious cases, judges have hospitalized LGBT youth in an attempt to stop
having sex with another girl; prior to adjudication, the judge, with the parents’ approval,
ordered that she be placed in a private hospital for 14 days so she could be “treated and
diagnosed for this behavior.”37
Interviewees described several
incidents in which facility staff
tried to change the sexual orientation of youth in their care. A
defender reported that the staff
in a residential placement gave a
15-year-old boy a women’s lingerie catalog with the explicit purpose of teaching him appropriate
sexual desire.38 In other instances,
professionals used coercive tactics that relied on religion to attempt to “convert” youth. For example, a defender reported that
a facility, the counselor handed
him “a religious tract on why homosexuality is wrong.”39
Detention staff also try to change the gender identity of transgender youth, explicitly including such efforts in the youth’s treatment plans. For example, an attorney from the
South represented a male-to-female (MTF) transgender youth who was detained in a boys’
facility. The youth’s “treatment plan” stated that she was to receive “help with gender
confusion and appropriate gender identity,” which included staff prohibiting her from
growing her hair out or having any feminine accessories.40 The same attorney reported
that another client—a gender-nonconforming lesbian—had a similar treatment plan “even
though she fully accept[ed] that she [wa]s a female, fe[lt] that she [wa]s a female, and
seemed to have no confusion about her gender.”41 In another case, a mental health evaluator encouraged the court and facility staff to help a transgender youth, who had been
diagnosed with GID, to understand that it was not appropriate to “act like a girl” while
incarcerated in a boy’s facility.42
65
4
Endnotes
1.
2.
3.
4.
5.
HIDDEN INJUSTICE
6.
7.
8.
9.
10.
11.
12.
13.
14.
Equity Project focus group, Brianna, a 17-year-old black-Asian, lesbian youth (May 5,
2008).
Equity Project focus group, Jason, a 22-year-old white-Latino, gay youth (Apr. 22,
2008).
Amnesty International, Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay,
Bisexual, and Transgender People in the U.S. 33 (Sep. 2005).
Id. at 2.
Twenty-nine percent reported police mistreatment as a “very serious” problem, and
40 percent reported it as a “somewhat serious” problem.
Equity Project interview with a juvenile prosecutor (Apr. 17, 2008).
Equity Project focus group, Yvette, a 16-year-old Latina, lesbian youth (Apr. 11, 2008).
Equity Project focus group, Russell, a 21-year-old white bisexual male youth (Apr.
17, 2008).
Equity Project focus group, Lily, a 17-year-old Latina-white male-to-female
Equity Project focus group, Tyler, a 22-year-old Native American, gay male youth
(Apr. 17, 2008).
Equity Project focus group, Kyle, a 17-year-old white bisexual female-to-male
Lily, supra note 10.
Coming of Age in America: The Misapplication of Sex Offender Reg.
, 91 Cal. L. Rev. 163, 186 (2003).
See also Franklin E. Zimring, An American Travesty: Legal Responses to Adolescent Sexual
Offending 17 (2004) (almost all states prohibit sexual intercourse with youth under
age 16, and more than one third set age of consent at 17 or 18); Sarah Tofte, No Easy
Answers 72-73 (Human Rights Watch, 2007).
supra note 15, at 186. In a majority of states, lewd-conduct laws also prohibit all sexual activity with individuals under the age of 14, even if both parties are
underage. Id.
harmful under ordinary circumstances and is probably a valuable psychosocial
experience in developmental terms.” Id. (internal citation omitted). See also Zimring,
supra note 15, at 17 (noting that only about half the states permit peer sexual contact
between older teens because prosecution for consensual sexual activity requires an
17. See
supra note 15, at 187 (“The lack of a clear distinction between consensual and nonconsensual illegal sexual behavior results in an often arbitrary distinction between perpetrators and victims, with the majority of perpetrators being
low-income boys, most of whom are already being observed by the juvenile justice
system and thus subject to extra scrutiny”); Matthew Waites, The Age of Consent:
Young People, Sexuality and Citizenship (Palgrave MacMillan 2005).
18. Amanda Petteruti & Nastassia Walsh, Justice Policy Institute, Registering Harm: How
Sex Offense Registries Fail Youth and Communities 5 (2008).
66
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
38.
39.
40.
41.
42.
Anonymous juvenile prosecutor comment, Survey for Prosecutors: Lesbian, Gay, Bisexual
and Transgender Youth in Juvenile Delinquency Courts, online Equity Project survey.
Guidelines: Improving Court Practice in Juvenile Delinquency Cases 135 (2005)
Id. at 136.
Equity Project focus group, Adam, a 14-year-old African-American gay male youth
(May 5, 2008).
Equity Project focus group, Dale, a 15-year-old white, gay male youth (July 11, 2008).
Juvenile Delinquency Guidelines, supra note 25, at 150.
See also Coalition for Juvenile Justice, Handle with Care: Serving the Mental Health
Needs of Young Offenders 37 (2000) (“Gay youth talk of therapists who try to ‘cure’
them of their sexual orientation.”).
See American Psychological Association Task Force on Appropriate Therapeutic
Responses to Sexual Orientation, Report of the Task Force on Appropriate Therapeutic Responses to Sexual Orientation 11-12 (2009), available at http://www.apa.org/pi/lgbc/
publications/therapeutic-response.pdf; Barbara Fedders, Coming Out for Kids: Recognizing, Respecting, and Representing LGBTQ Youth, 6 Nev. L. J. 774, 788 n. 72 (2006).
American Medical Association, Resolution 506: Policy Statement on Sexual Orientation
Reparative (Conversion) Therapy (Apr. 2000), http://www.ama-assn.org/meetings/
public/annual00/reports/refcome/506.rtf.
American Academy of Child & Adolescent Psychiatry, Facts for Families: Gay, Lesbian
and Bisexual Adolescents (2006), http://www.aacap.org/page.ww?section=Facts%20
for%20Families&name=Gay,%20Lesbian%20and%20Bisexual%20Adolescents.
Joy S. Whitman, et al., American Counseling Association: Ethical Issues Related to Conversion
or Reparative Therapy (May 22, 2006), http://www.counseling.org/pressroom/newsre
leases.aspx?aguid=b68aba97-2f08-40c2-a400-0630765f72f4.
American Psychoanalytic Association, Position Statement: Reparative Therapy (2006),
http://www.apsa.org/ABOUT_APSAA/POSITION_STATEMENTS/
REPARATIVE_THERAPY.aspx.
Correspondence to the Equity Project from a defender (Mar. 12, 2008).
Equity Project interview with a juvenile justice professional (Feb. 25, 2008).
Id.
Jody Marksamer, And by the Way, Do You Know He Thinks He’s a Girl? The Failures of
Law, Policy, and Legal Representation for Transgender Youth in Delinquency Courts, 5:1
Sexuality Research & Social Policy 72, 81 (2008).
67
4
Chapter 5
Impact of Family Rejection and School Harassment
on LGBT Youth Involvement in the Juvenile
Justice System
Juvenile justice professionals’ lack of awareness about the experiences of LGBT youth negatively impacts their ability to work effectively with these youth. More than 79 percent of
survey participants listed lack of understanding of LGBT issues by juvenile court personnel as a “very serious” (45 percent) or “somewhat serious” (34 percent) problem in the
juvenile justice system. As EPAC member and Brooklyn, New York Judge Paula Hepner
ciently informed, they proceed inappropriately in cases involving LGBT youth, primarily
because they do not understand the ‘back’ story, not usually because of overt bias.”1
Understanding the “back story”—or the context within which youth live and act—is critical for effective juvenile court decision making for all youth in the system. For LGBT youth
in particular, an added obstacle to fair and individualized treatment is the failure of juvenile justice professionals to understand that societal biases against LGBT youth can negatively impact adolescent development and lead to family rejection and school victimization. These factors can place LGBT youth at risk of contact with the juvenile justice system,
Stigma, Rejection, and Harassment Negatively Impact the
Development of LGBT Youth
The stigma, rejection, and harassment that many LGBT youth face in their families, schools,
and communities can negatively impact their psychosocial development and behavior.
During adolescence, LGBT youth, like their non-LGBT peers, undergo complex physical,
psychosocial, cognitive, and sexual changes and must learn to master a range of skills.2
LGBT youth have the added challenge of contending with these developmental changes
LGBT-related stigma, rejection, and harassment have social, behavioral, and health-related
consequences that can increase risk behaviors, such as substance abuse and unprotected
sex, and intensify psychological distress and risk for suicide.3 Equity Project Advisory
Committee (EPAC) member Dr. Marty Beyer, a child and adolescent psychologist, explains
that adolescents are particularly susceptible to the harm of rejection and harassment because they are in the process of developing their identity. For adolescents, rejection and
actions and interactions at home, at school, and in the community. Trauma can lead to
depression, substance abuse and hypervigilance (i.e., being on the alert for rejection and
threat).4 Trauma also places adolescents at risk of relationship and school problems that
can lead to delinquency.5
Understanding these contextual factors helps professionals recognize the root causes of
the behaviors that bring youth into the system and make informed decisions about appropriate juvenile court interventions. A developmentally sound approach to juvenile court
practice—which takes into account the impact of trauma on youth behavior—allows the
69
Impact of Family Rejection and School Harassment on LGBT Youth Involvement in the Juvenile Justice System
5
system to provide more effective services. As Dr. Beyer explains, youth might react to their
experiences of trauma in ways that can lead them into the juvenile justice system. For exthat is out of proportion to the present provocation, being self-protective when threatened,
and perceiving others as hostile. Professionals working in the justice system should not
simplistically view youth’s reactive responses to trauma as behaviors requiring punishment. Instead, they should help the youth to make peace with the past; understand their
own trauma-related anxiety, hypervigilance, and depression; and learn new, productive
responses to rejection and provocation.6
Family Rejection
“People [working in the juvenile justice system] need to have a better understanding
of what LGBT youth are going through, not just what they did.”7
HIDDEN INJUSTICE
— Jason, a 22-year-old white and Latino gay male youth
serious” or “somewhat serious” problem for LGBT youth in the juvenile justice system.
Family rejection leads to negative outcomes for youth and impacts all aspects
of the court process.
terms with their child’s sexual orientation and gender identity. Parents have compared the
sense of loss and devastation they feel upon learning their child is LGBT to mourning the
death of a child.8 One study found that 45 percent of parents were angry, sick, or disgusted
9
Another study
showed that approximately 30 percent of LGBT youth were physically abused by family
members as a result of their sexual orientation or gender identity.10 LGBT youth of all races
and ethnicities have experienced family rejection and isolation.11
major study of LGBT adolescents and their families—have documented the impact of family responses to children’s emerging LGBT identities.12 Not surprisingly, they found that
family acceptance is an important protective factor, and family rejection leads to serious
negative outcomes for LGBT youth. Lesbian, gay, and bisexual young adults who experienced high levels of family rejection during adolescence were 8.4 times more likely to
have attempted suicide, 5.9 times more likely to report high levels of depression, 3.4 times
more likely to use illegal drugs, and 3.4 times more likely to report having engaged in
unprotected sex compared with peers reporting no or low levels of rejection.13 Family aclife satisfaction.14
70
Family rejection underlies a number of specific offenses with which LGBT
youth are charged.
offenses, domestic disturbances, and survival crimes.
Ungovernability or incorrigibility
fusal to accept a child’s sexual orientation or gender identity frequently lead to prosecutors
9 out of 10 LGBT youth entering the system in her jurisdiction have been charged with
ungovernability, curfew violations, or truancy, based primarily on the parents’ objections
to their children’s sexual orientation.15 One defender summed up the problem in this way:
I somewhat blame the judicial system in that they’re [telling youth], “You’re not
obeying your parents.” But if your parents order you not to be gay, how do you do
that? If they tell you how to be and you refuse to be who you’re not, they charge
you with being beyond control.16
Acknowledging the serious harm that lack of family support can cause a child, some judges said they offer counseling to families who are struggling to accept their child’s LGBT
identity “so that the parent can deal with their own feelings, and respect their child for
who they are.”17 One judge who has presided over several such ungovernability cases
explained:
I try to have a lengthy conversation in front of the child with the parents. I tell the
parents how good their child is and how they are lucky that their child is so good.
. . . Sexual orientation is secondary and shouldn’t be an issue.18
in which a mother could not accept her daughter’s lesbianism, the presiding judge did
ma’am, you just have to talk to your daughter. You, young lady, have to understand where
your mother is coming from.”19
Runaways, homelessness, and survival crimes
Family rejection can also lead to homelessness. Studies have shown that LGBT youth are
disproportionately represented in the homeless youth population, making up between 20
and 40 percent of all homeless youth.20 These young people may be on the run from abusive
families and/or foster care placements where they have experienced verbal and physical
abuse on account of their actual or perceived sexual orientation or gender identity. Once
71
5
HIDDEN INJUSTICE
on the street, LGBT youth often have nowhere to turn for help or protection. Studies have
shown that homeless LGBT youth experience discrimination, as well as assaults by peers,
when trying to access services for homeless youth.21
for homeless LGBT youth; for example, in New York City, where there are approximately
viduals.22 Homelessness also exposes LGBT youth to a high risk of victimization, including
assault, robbery and rape. Among homeless youth, LGBT youth report the highest rates of
victimization, risk, and health concerns.23
Research shows that leaving home as a result of family rejection is the greatest predictor of
future involvement with the juvenile justice system for LGBT youth.24 In a study of LGBT
homeless youth, 39 percent reported they had been “kicked out” of their home because of
their sexual orientation or gender identity, and 45 percent reported involvement with the
juvenile justice system.25
ty led to youth running away, which is a status offense that can result in court intervention.
LGBT youth who are homeless often commit “survival crimes,” such as theft, prostitution,
and drug sales, to obtain life necessities like adequate housing and food.
72
Shoplifting
with homeless LGBT youth who turned to shoplifting for their basic life necessities, such
as toothpaste and deodorant. Moreover, a few people mentioned that shoplifting charges
often occur when youth could not otherwise obtain clothing items associated with the opposite sex, and one judge remarked that charges against transgender youth in her courtroom mostly related to shoplifting.26
Prostitution
Like other youth who are homeless, LGBT youth sometimes turn to sex work for survival.27
One defender noted that every client she has represented with a prostitution charge has
been LGBT, and many others commented on the fact that transgender youth, in particular, are often arrested for prostitution. One explanation for the prostitution charges is that
LGBT youth are disproportionately represented among the runaway population.
The experience of one youth, George, illustrates that pervasive abuse and rejection marginalize LGBT youth and place them at risk of commercial sexual exploitation.28 When he was
and uncle. For years, George endured the beatings and verbal abuse of family, whom he
describes as “the monsters
waiting for me at home,” because he is gay. He thought of
school as his sanctuary until
a teacher sexually assaulted
him. At age 14, determined
wood, where he lived on the
streets and worked as a prostitute to survive. After two
years, he was arrested and
placed in an LGBT group
home, where he felt like he
was given a second chance.
George is a survivor, but as
he admits, “For the past ten
years, [the history of prostitution] has haunted me. It’s
one of those labels you can’t
live down—ever.”
73
5
Substance abuse
Family rejection can also contribute to drug use, which can lead to status offense or drug
possession charges.29 Research suggests a high rate of substance abuse by youth who have
been traumatized in an effort to numb their feelings and past memories.30 Professionals
discussed in interviews what they viewed as a relatively high rate of substance use by
LGBT youth and said that they believed youth were “self-medicating.” One defender attributed drug use by LGBT youth to “a general feeling of being disenfranchised” because
of societal biases against them.31
Domestic disputes
“I told [my lawyer] that my aunt and mother kicked me out because I was gay and put a
restraining order on me to stay out of the house. I had a good lawyer. [He] helped me get
”32
HIDDEN INJUSTICE
—Jesus, a 19-year-old Latino gay youth
For youth who live daily with parental rejection and abuse, turmoil at home can lead to arguments that result in domestic violence charges. For instance, one defender represented a
16-year-old boy whose father did not accept the fact that his son was gay.33
twice erupted into physical altercations, which resulted in the police arresting the youth
even though indications existed that the father was abusing him. In another case, the prosecutor charged a lesbian youth with assault after she had a dispute with her mother about
having a girlfriend. The youth’s defense counsel believed that the prosecutor proceeded
with the case because the youth was a lesbian. The defender also noted that her client’s
34
Lack of family involvement in the delinquency case also negatively impacts
LGBT youth.
“The biggest problem does not come from systematic components (i.e. police, court, probation), but from parents that have trouble accepting their child’s orientation.”35
—a juvenile court prosecutor
Once youth enter the system, family support—or lack thereof—affects the course of their
cases. Despite evidence demonstrating that families play a critical role in the success or
failure of their children in delinquency cases, the courts, probation agencies, and correctional systems rarely engage families in the process of making decisions or developing
disposition plans.36 The high rate of family rejection for LGBT youth in the system only
exacerbates this common problem and increases the likelihood that the system will subject
LGBT youth who lack family support to disproportionately harsh sanctions at every stage
of the process.37
74
School Harassment
“My mom [told the judge I was gay]. She told him I wouldn’t go to school and I got
kicked out. [But the problem was] I was getting harassed at school. My PO lied and said
it wasn’t as bad [at school] as it was.”38
—Andrew, a 17-year-old Latino gay male youth
Like rejection at home, harassment at school is another factor which is external to the justice system but can place LGBT youth at risk of juvenile court involvement and negatively
impact the course of their delinquency cases.
LGBT youth’s experiences at school also impact their involvement
in the juvenile courts.
The school system and juvenile justice system have become inextricably linked in ways
that undermine the effectiveness of each system. Schools today often rely on the court
system to handle minor student misconduct that historically would have been handled
informally by the school. These school-referral cases have clogged juvenile court dockets,
reduced academic achievement, and saddled youth with a host of negative consequences
39
Like other youth, LGBT youth are impacted
by the tendency to criminalize student behavior. For them, however, the problem is exacerbated by the harassment and abuse they face in schools.
LGBT youth face pervasive harassment and violence in schools.
LGBT youth are often subjected to relentless bullying and harassment by classmates. Not
only do schools often fail to intervene in student-on-student harassment, but school personnel themselves also engage in harassment.40 An extensive survey of students in Massachusetts high schools found that lesbian, gay, and bisexual youth are more than twice
as likely to report having been in a physical fight at school in the previous year and three
times more likely to report having been injured or threatened with a weapon at school in
the past year than their non-LGB peers.41 Similarly, a 2007 national survey of self-identified
LGBT youth aged 13 through 20 found that:
U Nearly three fourths of respondents heard homophobic remarks in their schools
frequently or often;
U 86 percent reported being verbally harassed (e.g., called names or threatened) at
school because of their sexual orientation, and 67 percent of students were verbally
harassed because of their gender expression;
U 44 percent of students had been physically harassed (e.g., pushed or shoved) at
school in the past year because of their sexual orientation and 30 percent because of
their gender expression;
75
5
U 22 percent reported being physically assaulted (e.g., punched, kicked, injured with a
weapon) because of their sexual orientation and 14 percent because of their gender
expression;
U 61 percent of youth felt unsafe in their schools because of their sexual orientation; and
U 38 percent felt unsafe because of their gender expression.42
HIDDEN INJUSTICE
In Equity Project focus groups, youth recounted similar experiences of harassment in their
schools. Yvette explained, “[School security] is so disrespectful; I can’t even put my arm
around my girl. They say it’s not appropriate, but the boys are all nasty and rub up on the
girls and the security say nothing.”43 Another girl from the same school, Gisela, agreed,
pointing out that security will tell groups of girls who openly identify as lesbians that
they cannot congregate in the bathroom, whereas girls not perceived to be lesbian are not
treated the same.44
LGBT youth who are victimized in school are also at risk of school failure.
nile justice system and negatively affects their prospects for a successful transition to adulthood. The lack of safety in schools for LGBT youth can lead to lower academic achievement
and disengagement from school,45 with those students experiencing the most harassment
also showing the lowest academic achievement. For example, one survey found that students more frequently facing harassment because of their sexual orientation or gender
expression had grade point averages almost half a grade lower than students experiencing
less frequent harassment.46 In addition, nearly one third of LGBT students who drop out of
high school do so to escape harassment.47 Once youth drop out, they are a heightened risk
for juvenile court involvement.48
LGBT youth who skip school to avoid harassment face truancy charges.
LGBT youth are likely to skip school to avoid the physical and verbal torment that awaits
them there. In one study, 32.7 percent of LGBT students reported that they had missed
school in the past month because they felt unsafe, compared to 4.5 percent of a national
sample of secondary school students.49 These youth are vulnerable to arrest on truancy
charges, as well as violations of a common probation condition that requires daily school
attendance. One prosecutor noted that if school harassment is driving a youth’s truancy,
punishing the youth by formally processing him is not likely to make him go to school.
Until the underlying harassment is addressed, the youth’s decision to skip school remains
a rational one, grounded in the desire to protect himself.
LGBT youth who defend themselves against harassment and violence at
school face charges.
In some instances, LGBT youth have fought back to defend themselves at school, and
the system has respond by charging them, rather than the instigator, with disorderly
76
conduct or assault. One defender remarked that he had seen cases in which LGBT youth
were bullied for long periods of time, and the school police responded by asking the bullied youth accusatory questions like, “Why were they calling you a faggot? Why would
they think that?”50 This same decused another one of her clients of
being “so provocative that the kids
couldn’t help but pick on him” because he wore nail polish.51
of understanding about the violence and harassment that LGBT
youth face at school can lead to
other inappropriate responses to
youths’ behavior. For example,
having endured constant harassment at school, Kevin, a female-tomale transgender youth, eventually
“snapped” and punched a classmate who taunted him because of
his masculine appearance. Rather
than interpreting Kevin’s actions in
the context of the harassment he had
suffered, the system perceived him
merely as a “danger to society” and
incarcerated him. As Kevin recalled,
no one ever bothered to ask him to
explain his behavior..52
LGBT youth are targeted for disproportionate punishment by school personnel.
A mix of factors, including the adoption of “zero tolerance” discipline policies, placehave converted many juvenile courts into de facto school disciplinarians. As a result of
anti-LGBT bias, LGBT youth might be particularly impacted by these punitive responses
to typical adolescent behavior.
For example, one defender had a client who was a transgender girl. She was astounded
by the vehemence with which the school administrators targeted this youth. As she explained, “He (sic) [uses] his cell phone and he gets arrested, where most kids would just
has a long record, but it’s mostly things that are provoked.”53 Another defender described
an incident in which a transgender female client named Raquel, other female classmates,
77
5
and the school quarterback were wrestling and tickling each other in the hallway at school.
At some point, Raquel allegedly touched the quarterback on his upper thigh and everyone laughed. Later that week, the quarterbacks’ parents threatened to (but did not) sue
the school because of the incident and because Raquel allegedly told the quarterback she
wanted to kiss him. The following week, the principal told Raquel he was suspending her
because of her “girl hairdo.”54 Although the defender and other youth advocates negotiated with the school to allow her back at school the next day, the principal immediately
suspended Raquel again, this time accusing her of “sexual assault” on the quarterback
because of the incident in the hallway the previous week. The two other girls who were
wrestling with Raquel were not suspended.
HIDDEN INJUSTICE
For LGBT youth in the justice system, problems at school are counted against
them in the course of the case.
Regardless of the offense with which a youth is charged, school-related problems can
affect the course of a young person’s court case. As EPAC member Kim Forte, a defense
attorney in the Juvenile Rights Practice of New York’s Legal Aid Society, explained, “If
an LGBT youth is having problems at school, it makes it so that everything with their
court case snowballs into a big avalanche.”55 For example, one common condition of
probation is regular school attendance, and when youth skip school to protect their own
safety, their probation is often revoked without concern for the reasons that they did not
attend school. Mishi Faruqee, EPAC member and advocate with the Children’s Defense
Fund, agreed that homophobia, harassment and mistreatment outside of the system are
“one of the biggest problems” because “these factors are counted against a youth when
they enter the system.”56
78
Endnotes
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
Equity Project interview with the Honorable Paula J. Hepner (Feb. 13, 2008).
Shannan Wilber, Caitlin Ryan, & Jody Marksamer, Child Welfare League of America Best
Practice Guidelines: Serving LGBT Youth in Out-of-Home Care 1-3 (2006).
Caitlin Ryan & Donna Futterman, Lesbian and Gay Youth: Care and Counseling 22-23
(Columbia University Press 1998); Caitlin Ryan et al., Family Rejection as a Predictor
of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Adults, 123
Pediatrics 346, 349-51 (2009) [hereinafter Family Rejection as a Predictor]; Anthony
R. D’Augelli, Incidence and Mental Health Impact of Sexual Orientation Victimization of
Lesbian, Gay, and Bisexual Youths in High School, 17 School Psychology Quarterly 148,
163-64 (2002).
Marty Beyer, Developmentally-Sound Practice in Family and Juvenile Court, 6 Nev. L.J.
1215, 1221-1231(2006).
Id.
Id.
Equity Project focus group, Jason, a 22-year-old white-Latino, gay youth (Apr. 22,
2008).
Ryan & Futterman, supra note 3, at 68.
Sonia Renee Martin, A Child’s Right to Be Gay: Addressing the Emotional Maltreatment
of Queer Youth, 48 Hastings L.J. 167, at 172-3 (1996-1997); A.R. D’Augelli, Parents’
Awareness of Lesbian, Gay, and Bisexual Youths’ Sexual Orientation, 67 Journal of
Marriage & Family 474-482 (2005).
Philadelphia Lesbian and Gay Task Force, The 1999 Study of Discrimination and
Violence against Lesbian and Gay Men in Philadelphia and the Commonwealth of
Pennsylvania (2000).
See Barbara Fedders, Coming Out for Kids: Recognizing, Respecting, and Representing
LGBTQ Youth, 6 Nev. L.J. 774, 788 (2006).
See Family Rejection as a Predictor, supra note 3.
Id. at 346-352, 350.
Caitlyn Ryan & Rafael M. Diaz, Family Responses as a Source of Risk and Resiliency for
LGBT Youth, presentation at the pre-conference Institute on LGBTQ Youth, Child
Welfare League of America 2005 National Conference, Washington, D.C. (2005).
Anonymous juvenile judge comment, Survey for Judges: Lesbian, Gay, Bisexual and
Transgender Youth in Juvenile Delinquency Courts, online Equity Project survey.
Equity Project interview with a juvenile court judge (Feb. 21, 2008).
Equity Project interview with a juvenile court judge (Sep. 25, 2007).
Nicholas Ray, Lesbian, Gay, Bisexual and Transgender Youth: An Epidemic of Homelessness 1, 11-14 (National Gay and Lesbian Task Force Policy Institute and National Coalition for the Homeless 2006), http://www.thetaskforce.org/reports_and_research/
homeless_youth; Rob Woronoff et. al., Out of the Margins: A Report on Regional Listening
Forums Highlighting the Experiences of Lesbian, Gay, Bisexual, Transgender, and Questioning
Youth in Care 34-35 (Child Welfare League of America 2006).
79
5
HIDDEN INJUSTICE
21. Ray, supra note 20, at 83-5; National Alliance to End Homelessness, et al., National
Recommended Best Practices for Serving LGBT Homeless Youth 2 (2009).
22. Deena Guzder, Gay, Young, and Homeless, New York Blade (July 8, 2005), available at
http://www.urbanjustice.org/pdf/press/new_york_blade_08jul05.pdf.
23. B.N. Cochran, et al., Challenges Faced by Homeless Sexual Minorities: Comparison of
Gay, Lesbian, Bisexual, and Transgender Homeless Adolescents with Their Heterosexual
Counterparts, 92:5 American Journal of Public Health 774-75 (2002).
24. Fedders, supra note 11, at 796; Family Rejection as a Predictor, supra note 3. See also
Heather Berberet, Putting the Pieces Together for Queer Youth: A Model of Integrated
Assessment of Need and Program Planning, 85 Child Welfare Journal 361, 373 (2006)
(showing, in one survey, that 39 percent of LGBT Youth ages 12-24 living out of
home had been forced to leave home due to sexual orientation or gender identity).
25. Berberet, supra note 24, at 373.
26. Equity Project interview with a juvenile court judge, (Sep. 25, 2007).
27. Ray, supra note 20, at 55.
28. DVD and resource CD, Breaking the Silence: LGBTQ Foster Youth Tell Their Stories
(2006), http://www.nclrights.org/site/PageServer?pagename=issue_youth_break
ingthesilence [hereinafter Breaking the Silence].
29. Randi Feinstein et al., Justice for All? A Report on Lesbian, Gay, Bisexual and Transgendered Youth in the New York Juvenile Justice System 14-15 (Urban Justice Center 2001);
Family Rejection as a Predictor, supra note 3, at 349.
30. See Spencer Eth, PTSD in Children and Adolescents, 20 Review of Psychiatry Series 43
(2001) (discussing study of 297 adolescents in residential drug treatment program
that found 75 percent had a high rate of trauma exposure and almost one third had
long-standing PTSD).
31. Equity Project interview with a juvenile defender (Aug. 16, 2007).
32. Equity Project focus group, Jesus, a 19-year-old Latino, gay male youth (Apr. 22,
2008).
33. Correspondence from a defender to the Equity Project (June 12, 2007).
35. Anonymous juvenile prosecutor comment, Survey for Prosecutors: Lesbian, Gay,
Bisexual and Transgender Youth in Juvenile Delinquency Courts, online Equity
Project survey.
36. Annie E. Casey Foundation, Issue Brief: Reform the Nation’s Juvenile Justice System 5
(2009) [hereinafter Casey Issue Brief].
37. Feinstein, et al., supra note 29, at 13.
38. Equity Project focus group, Andrew, a 17-year-old Latino, gay male youth (May 4,
2008).
39. Gary Sweeten, Who Will Graduate? Disruption of High School Education by Arrest and
Court Involvement, 23 Justice Quarterly 477, 477-79 (Dec. 2006).
40. Advocates for Children of New York, In Harms Way: A Survey of Lesbian, Gay, Bisexual, and Transgender Students Who Speak About Harassment and Discrimination in
New York City Schools 4 (2005), available at http://www.advocatesforchildren.org/
pubs/lgbt_report.pdf [hereinafter In Harms Way]; Human Rights Watch, Hatred in
80
the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual and Transgender
Students in U.S. Schools 80-86 (2001).
41. Massachusetts Department of Education, 2005 Massachusetts Youth Risk Behavior Survey
Results 43 (2007), http://www.doe.mass.edu/cnp/hprograms/yrbs/05/default.html.
42. Gay, Lesbian and Straight Education Network, The 2007 National School Climate
Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s
Schools 25-26, 30-32 (2008), available at http://www.glsen.org/binary-data/GLSEN_
[hereinafter GLSEN 2007 National School
Climate Survey].
43. Equity Project focus group, Yvette, a 16-year-old Latina, lesbian youth (Apr. 11,
2008).
44. Equity Project focus group, Gisela, a 17-year-old Latina-West Indian, lesbian youth
(Apr. 11, 2008).
45. GLSEN 2007 National School Climate Survey, supra note 42, at 83-94.
46. Id. at 84, 86.
47. In Harm’s Way, supra note 40, at 23.
48. Johanna Wald & Dan Losen,
, 99
New Directions for Youth Development 11 (2003).
49. GLSEN 2007 National School Climate Survey, supra note 42, at 38-39.
51. Id.
52. Breaking the Silence, supra note 28.
54. Email correspondence requesting assistance from the Equity Project (Nov. 1, 2006)
55. Equity Project interview with Kim Forte (Dec. 3, 2007).
56. Equity Project interview with Mishi Faruqee (Nov. 28, 2007).
81
5
Chapter 6
6
Lack of Services to Meet the Needs of LGBT Youth
“[LGBT youth] are often rejected and disenfranchised by
the very agencies that should be serving them.”
To achieve their rehabilitative purpose, juvenile courts must tailor interventions to meet the
individualized treatment needs of the youth under their jurisdiction.2 Dispositions should
implement effective delinquency prevention strategies and provide a continuum of effective
and least intrusive responses to reducing recidivism.3 However, juvenile courts should not
maintain jurisdiction in individual cases solely as a means to access services. As the National Council of Juvenile and Family Court Judges (NCJFCJ) Juvenile Delinquency Guidelines
emphasize, the delinquency system should “divert cases to alternative systems whenever
possible and appropriate” so that only serious or chronic offenses should reach disposition.4
A lack of effective programs impedes the juvenile justice system’s ability to provide effective treatment to youth. Partly because of the pervasive lack of programs based in the community, the juvenile justice system relies primarily on incarceration of youth—an intervention that has proven both ineffective and profoundly harmful. Commentators have noted
that the lack of mental health services in the community has inappropriately converted
the juvenile justice system into the de facto mental health system.5 Even where alternatives to incarceration exist, their effectiveness varies widely. Although some jurisdictions
have implemented evidenced-based practices in community settings, many continue to
rely on ineffective and unaccountable community-based programs. For LGBT youth, these
general barriers are compounded by the fact that there are few programs, placements, or
services that are competent to serve them.
What Makes Programs, Placements, or Services
Competent to Serve LGBT Youth?
Experts agree that effective interventions “must be designed with appropriate developmental and cultural understanding,”6 which includes sensitivity to a youth’s race, culture,
gender, and sexual orientation.7 Programs and placements that are competent to work with
LGBT youth ensure that LGBT youth are safe, treated fairly, and have their needs met.
Specifically, competent programs:
U Are designed with the understanding that at least some of the youth served will be
LGBT;
U Do not make assumptions about the sexual orientation and gender identity of individual youth;
U Do not rely on gender, race, or other stereotypes but make individualized assessments of the strengths and needs of each client;
U Unequivocally prohibit any attempts to change a youth’s sexual orientation and
gender identity;
83
—Coalition for Juvenile Justice1
U Adopt and enforce nondiscrimination policies;
U Implement protocols that maintain the confidentiality of information regarding a
youth’s sexual orientation and gender identity;
U Require training of all service providers on issues related to sexual orientation and
gender identity;
U Address developmental, physical, social and emotional concerns of LGBT youth;
U Understand and address the impact of societal bias on LGBT youth development;
U Provide LGBT youth with help in addressing issues of family rejection, school harassment, and societal stigma; and
HIDDEN INJUSTICE
U Provide support to families of LGBT youth or refer families to appropriate programs.
Some jurisdictions have begun identifying and developing more LGBT-competent services and placements. In one jurisdiction, for example, a judge reported that a colleague
has recruited LGBT-friendly foster homes, and others in the jurisdiction have “been supportive of her efforts.”8 In other jurisdictions, agencies have opened group homes spehome” was “the best thing they ever did” because the staff support LGBT youth’s sexual
orientation and gender identity “with no questions asked.”9 She explained, “I was very
comfortable in this group home. I said I’m gay and they said ‘Alright, we were looking
for kids like you.’ ”10 As other professionals and youth agreed, specialized placements
can ensure that LGBT youth are protected from physical and emotional abuse.11
However, not all youth want to be placed exclusively with other LGBT youth, nor do all
LGBT youth require the level of services provided in a group setting. Moreover, the existence of specialized placements for LGBT youth does not absolve the juvenile justice
system of its responsibility to develop less restrictive placements and to ensure that other
placements demonstrate competence to work with LGBT youth.12 Some professionals interviewed for this project stated that the creation of specialized placements only marginalizes LGBT youth. As one youth, Reynaldo, who had been in a group home for LGBT youth,
pointed out, “If they think you are gay and they sentence you to placement, they send you
to a gay place, but maybe you don’t want to go there and your needs are not being met.”13
Group homes and programs that are competent to serve LGBT youth, although not designed exclusively for them, can also provide appropriate services and treatment.
Many jurisdictions lack programs and out-of-home placements competent to
serve LGBT youth, which can lead to unnecessary case petitions, pretrial
detention, and out-of-home placements.
“It’s ignorance on our part not knowing what resources are out there. There may be
resources in the community, but if they are out there, we don’t know about them.”14
—a juvenile court judge
Unfortunately, a scarcity of programs competent to serve LGBT youth impedes the ability
of youth to access the services they need and unnecessarily prolongs their involvement in
84
6
and placements at all stages of the continuum.
Lack of diversion options
Lack of disposition programs
Only 37 percent of survey respondents knew of disposition programs or resources in
their jurisdictions that they believed could serve LGBT youth appropriately. Whether
respondents simply lack awareness of programs that do exist or there are no such programs in their jurisdictions is unclear. Either way, the end result is the same; the system
fails to provide LGBT youth with appropriate services that can meet their individualized needs.
Lack of appropriate out-of-home placements
Approximately 82 percent of all Equity Project survey participants reported that the
lack of LGBT-competent placements was a serious problem for LGBT youth in the juveLGBT youth as a serious problem. Professionals encountered many facilities that refused to accept LGBT clients
because they were afraid that
they could not keep LGBT
youth safe, thought LGBT
youth, especially transgender youth, would be disruptive to their programming,
or believed that LGBT youth
would sexually prey on other youth in the program. As
a result, some LGBT youth
are placed in settings that
are more restrictive than
necessary. In one case, a prothat a transgender youth be
placed in a nonsecure group
85
Approximately 63 percent of the professionals surveyed stated either that the diversion
programs in their jurisdiction were not competent to work with LGBT youth or that they
did not know of any LGBT-competent diversion programs. With few diversion options, the
system is more likely to formally charge and process LGBT youth when diversion would
be more appropriate.
home. When no group homes in the state were willing to accept her, the court ordered
her placed in the state’s highest-security facility because it is legally required to accept
any referred youth.15 In another case, a defender had a gay client who was described
would normally take such a kid were scared that because he was gay they couldn’t keep
him safe.”16
Numerous interviewees also stated that probation departments have detained LGBT
youth after disposition for periods of up to a year or more because other placements
refused to accept custody of them or were not appropriate for them. Not only does this
HIDDEN INJUSTICE
but their rehabilitation and eventual release from court jurisdiction are also delayed as
long as they are detained.
A lack of mental health professionals and evaluators competent to serve
LGBT youth also prevents those youth who have mental health needs from
obtaining treatment.
Not all LGBT youth require mental health services. For those who do, evaluators and
counselors with expertise in working with LGBT youth are critical for ensuring that
they receive thoughtful and appropriate treatment. Unfortunately, the Coalition for Juvenile Justice found that “counseling and other services are virtually worthless [for
LGBT youth] because they either ignore or criminalize the youth’s sexuality.”17 Many
of the professionals interviewed agreed with this assessment. One defender in a rural
area explained:
If [the youth are] having gender identity or sexual orientation issues, [they’re
provided] just generic counseling . . . To my knowledge there’s not a coun-
level of acceptance.18
Another defender from a rural area in the Northwest explained that, “LGBT youth end up
in mental health facilities [because] there’s just nowhere else to send kids to get therapy for
any issue because these are the only counselors available. There is no one else for a teen to
discuss this situation with.”19
Mental health evaluators with LGBT expertise also are in short supply. Seventy-seven
percent of Equity Project survey respondents reported that they were unaware of any
evaluators in their jurisdictions who have specialized knowledge in working with LGBT
youth. One defender explained that mental health evaluators often lack an understanding of typical adolescent development and are “proceeding from the presumption that
86
6
healthy sexual development is heterosexual, and that LGBT kids need mental health
treatment because of their ‘other’ sexual preferences.”20 As a result, several other defense
attorneys remarked that mental health evaluations of LGBT clients often implied that
21
often imposes harsher dispositions based on the perception that he or she is less likely to
comply with services.
“My mom made me uncomfortable by making me wear dresses, and . . . she
wouldn’t let me be me. . . . [N]ow, my mom has to go to counseling and therapy to learn to
accept me. . . . She is starting to understand. Now she’s like ‘I love my daughter.’
It feels good to accomplish that.”22
—Precious, a 17-year-old black-Asian lesbian youth
Effective disposition planning requires consideration of the youth’s and family’s strengths
and needs.23 The system should engage families in the process by encouraging them to
participate in the development and implementation of their child’s disposition.24 In fact,
judges in many jurisdictions can require parents to participate in family treatment, counseling, and appointments with probation.25
Practice Tips: Interventions to Strengthen Families
In appropriate cases, the juvenile justice system should provide families with interventions
identity. In particular, juvenile justice professionals should:
Engage families in the court process; don’t let families simply disengage because
their child is LGBT;
Provide support and guidance to parents and caregivers to help them adjust to their
child’s sexual orientation or gender identity;
Educate families on the positive impacts of family acceptance, as well as the negative
impacts of family rejection on youth;
Refer parents and caregivers to counseling to address feelings, attitudes, and
behaviors toward their children’s sexual orientation and/or gender identity;
Provide intensive home-based services to address any crisis situation presented by
the family’s discovery of the youth’s sexual orientation and/or gender identity; and
Support LGBT youths’ connections to their extended families.26
87
Appropriate counseling for families of LGBT youth is lacking.
HIDDEN INJUSTICE
Juvenile courts struggle to appropriately engage families in general. For LGBT youth in
particular, the lack of appropriate counseling for families who are struggling to come to
terms with their child’s sexual orientation or gender identity poses a serious barrier to
treatment. One juvenile justice professional explained, “It’s really hard for the parents.
They are not sure what kind of life their kid will face, but the parents have to realize
that they can’t expect their kid to be someone they are not.”27 One judge explained,
“You could have a family that says ‘we don’t want her home until she straightens out.’
How do you get to that family? [The youth is] going to keep running because she’s not
treated well. All of that comes into play. Family is critical for a lot of the issues.”28 Without professional resources to help families learn to come to terms with their children’s
identities, judges are often left to address these issues in whatever way they can. One
judge lamented, “We don’t have resources. The biggest resource we have is me fussing
at parents for not accepting their children for being gay or lesbian.”29 Where services
exist, they can be helpful. A few people mentioned in interviews that family counseling, including services provided in the home, have helped strengthen the parent-child
relationship.
A Note on the Danger of Basing Prosecution Decisions on a
Youth’s Need for Services
The responsibility of the juvenile justice system to provide court-involved youth with necessary treatment services is undisputed. Because many families lack access to adequate
mental health services in their communities, some juvenile justice professionals have come
88
6
One prosecutor, for example, explained that he was more likely to petition an LGBT
essary step . . . to get family counseling in order to address the relational stress that LGBT
issues cause on many families.” This practice, however, is fundamentally unfair. Juvenile
adjudications bring with them the awesome prospect of loss of liberty, as well as a host
of other short- and long-term consequences that can negatively impact an individual’s
life outcomes.
ignores these harsh realities and deprives youth of due process. Moreover, using the
juvenile justice system in this way distorts the purpose of the system. When juvenile
court processing is not otherwise necessary, youth should receive services outside of the
justice system.
Practice Tip: Respecting the Privacy Rights of LGBT Youth
The decision to reveal information about a youth’s sexual orientation and gender identity
belongs to the youth alone. Some youth will freely reveal this information to everyone in
a case; others might not feel as comfortable discussing their LGBT-identity or might want
to keep it from professionals or their parents. One young woman named Claire explained
that she did not tell anyone working on her case that she is a lesbian because she was
afraid of what her parents would do if they learned this information from others in court.30
Juvenile justice professionals should respect each youth’s privacy and never disclose a
youth’s sexual orientation or gender identity unless the youth has given them permission.
This principle applies even in situations in which professionals conclude that revealing
information about a youth’s sexual orientation or gender identity against a youth’s wishes
is “in the youth’s best interests.” Doing so could compromise a youth’s safety at home, in
placement, at school, and even in the courthouse, as well as violate his or her trust. Equity
and personal information, such as a youth’s HIV status or LGBT identity, without consulting with the youth or protecting the youth’s privacy rights to the greatest extent possible.
Juvenile justice professionals should take the following steps to protect the privacy rights of
LGBT youth:
U
regarding disclosure of case information. Even if no legal or ethical prohibition on disclo-
89
to view the justice system as the default mental health system. As a result, they willingly
take shortcuts around due process to provide youth with the services that are available in
the justice system.
sure exists, professionals should, with the youth’s consent, share only that information
which is necessary to achieve a particular purpose, such as identifying an appropriate
placement.
U Defense attorneys, in particular, are bound by the duty of loyalty to their clients, the attorney-client privilege, and the duty to engage in client-directed representation. Defense
attorneys are therefore ethically bound to allow the client to decide whether to disclose
his or her sexual orientation or gender identity in the course of the case.
U The court should honor requests to redact information about a youth’s sexual orientation or gender identity in court records.
HIDDEN INJUSTICE
U Defense attorneys should ensure that clients understand who has access to court
records or other documents that contain personal information.
90
6
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
Coalition for Juvenile Justice, Handle with Care: Serving the Mental Health Needs of
Young Offenders 37 (2000) [hereinafter Handle with Care].
Guidelines: Improving Court Practice in Juvenile Delinquency Cases 135 (2005)
Id. at 136.
Id. at 133.
Judge Jay D. Blitzman, Gault’s Promise, 9 Barry L. Rev. 67, 82 (2007).
Handle with Care, supra note 1, at 46-47.
Equity Project focus group, Brianna, a 17-year-old black-Asian lesbian female youth
(May 5, 2008).
Id.
See Shannan Wilber, Caitlin Ryan, & Jody Marksamer, Child Welfare League of America
Best Practice Guidelines: Serving LGBT Youth in Out-of-Home Care 42 (2006) (“These
facilities can be an important resource for LGBT youth who prefer or need a more
structured group setting.”).
Id.
Equity Project focus group, Reynaldo, a 17-year-old Native American, straight male
youth (May 4, 2008).
Jody Marksamer, And by the Way, Do You Know He Thinks He’s a Girl? The Failures of
Law, Policy, and Legal Representation for Transgender Youth in Delinquency Courts, 5:1
Sexuality Research & Social Policy 72, 77 (2008).
Handle with Care, supra note 1, at 37.
Equity Project focus group, Precious, a 17-year-old black-Asian, lesbian youth (May
5, 2008).
Id. at 134-35.
Id. at 141.
Adapted from Wilber et al., supra note 11, at 15-25.
Equity Project focus group, Claire, a 21-year-old white lesbian female youth (June 2,
2008).
91
Endnotes
Chapter 7
7
Harmful and Inappropriate Use of Pretrial Detention
“[T]here is no value in detention as a deterrent to delinquency. The child who will be
deterred by a stay in detention is the same child who is affected positively by his court
appearances before the judge.”1
Restraints on a youth’s freedom pending trial are generally contrary to public policy.2 Most
state statutes provide that pretrial detention should be used only to ensure that alleged
delinquents appear in court or to minimize the risk of serious reoffending while current
charges are pending.3 Youth who do not meet these standards must be released to their
parent, guardian, or caregiver, or other suitable nonsecure placement.4 Professional standards and guidelines provide that detention decisions should be based on objective, evidence-based criteria, and jurisdictions should develop an array of alternatives to detention
that can ensure public safety and youth’s appearance in court.5
However, for a number of reasons, including lack of alternatives or a desire to punish
youth, many jurisdictions inappropriately detain youth pending adjudication.6 Despite the
fact that the U.S. crime rate is lower than it has been in 20 years, 500,000 youth are detained
every year in facilities across the country.7 Many of these youth are not “high risk,” and
approximately 70 percent are detained for nonviolent offenses.8 The overreliance on detention has a grossly disproportionate impact on youth of color who, according to a 2005
study, represent over two thirds of the youth in detention.9
Critical Implications of Detention for LGBT Youth
The decision to detain a young person pending adjudication has critical implications. Numerous studies have shown that youth in detention are at risk of abuse, injury, and suicide.10
Chapter 8 discusses how this is particularly true for LGBT youth. Time spent in detention
also increases the chances that a particular youth will engage in delinquent behavior in the
future,11 undermining the rehabilitative purpose of the juvenile justice system. Detained
youth are cut off from their pro-social connections to the community, including participation in extracurricular school activities, mentoring programs, and religious activities.12
Detention also negatively affects youths’ court cases because detained youth are less able
to assist in preparing for trial, less likely to make a positive impression on the judge, and
more likely to receive harsher dispositions than youth who are released pending trial.13
Emerging Research on LGBT Youth in Detention
In 2007, the Annie E. Casey Foundation Juvenile Detention Alternatives Initiative (JDAI)
funded a national study by Ceres Policy Research to (1) determine how many lesbian, gay,
bisexual, transgender, and questioning (LGBTQ) youth are detained in juvenile facilities
and (2) determine whether LGBTQ youth are experiencing different patterns of detention
when compared with heterosexual and gender-conforming youth.14
93
—Institute of Judicial Administration-American Bar Association
Juvenile Justice Standard 3.3
The study took place in six JDAI jurisdictions: Portland, Oregon; Albuquerque, New Mexico; Minneapolis, Minnesota; Santa Cruz, California; Las Vegas, Nevada; and Birmingham,
Alabama. Over the course of eight months, researchers collected more than 2000 anonymous surveys from youth in detention facilities in these jurisdictions at the time of intake.
The surveys included demographic questions, as well as questions about youth’s history
ness. In addition, the surveys asked youth to indicate the reasons they had been arrested
over the last twelve months.
Completed in early 2009, the study found that approximately 13 percent of the youth surveyed were LGBTQ.15 A breakdown of the total number by gender revealed that 11 percent
HIDDEN INJUSTICE
Compared with their heterosexual peers, LGBTQ youth in detention were:
U Twice as likely to have been removed from their homes because someone was hurting
them (11 percent of straight youth, compared with 23 percent of LGBTQ youth);
U Almost twice as likely to have lived in a foster or group home (18 percent of straight
youth, compared with 32 percent of LGBTQ youth);
U More than twice as likely to have been detained in juvenile facilities for running
away from their home or placement (12 percent of straight youth, compared with 28
percent of LGBTQ youth); and
U Four times as likely to have been detained in juvenile facilities for prostitution
(2 percent of straight youth, compared with 9 percent of LGBTQ youth).
Another study by Ceres Policy Research in 2007 also found that lesbian, gay, bisexual, and
questioning (LGBQ) youth are more likely than heterosexual youth to be detained. The
researchers surveyed 428 students, 14-to-17 years of age, from 14 schools in Santa Cruz
County, California, with the purpose of examining the link between alcohol and drug use,
school suspension and expulsion, and juvenile detention among youth in the county.16
Although not the focus of the study, the data revealed that LGBQ youth were disproportionately detained in Santa Cruz County. Thirty-eight percent of LGBQ youth surveyed,
compared to only 9 percent of all youth surveyed, had been arrested and detained. In
addition, LGBQ youth were more than twice as likely to have been detained for drug- or
alcohol-related offenses.17
Factors Leading to the Unnecessary Detention of LGBT Youth
Approximately half of Equity Project survey respondents indicated that overuse of detention was a “very serious” or “somewhat serious” systemic problem for LGBT youth in the
juvenile justice system, and numerous interviewees reported cases in which LGBT youth
indicate that the juvenile justice system inappropriately detains LGBT youth for a variety
of reasons.
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7
LGBT youth are frequently detained because they lack family support.
leading to their detention. Several defenders who were interviewed described LGBT clients who were detained solely because their families disapproved of their sexual orientation or gender identity and refused to allow them to return home. For example, when one
father told the judge in court that he did not want his son in his home because he was gay,
the judge ordered the youth detained without considering alternative placements. The
case involved a domestic battery charge, and the defender commented, “In [any other case
like this], the judge would have sent everyone home and told them to go to counseling, but
his Dad was just really anti-gay.”19
Courts inappropriately detain LGBT youth out of concern for their safety.
In other instances, courts detain LGBT youth based on a misconception that it will serve
their best interests. As one defender explained, “The court here really believes it’s a benevolent court, and so to protect these kids from being out on the street or being in a family
situation that may not be ideal,” LGBT youth are detained frequently.20 Another juvenile
justice professional noted that lesbians, in particular, are more likely to be detained because decision makers in the system “want to protect girls” and view lesbianism “as risky
behavior or harm to self.”21
Practice Tips for Judges at Detention Hearings
Involving LGBT Youth
youth who appear before them. In particular, judges should:
gender identity. Does the youth self-identify as LGBT? If so, who knows the youth is LGBT?
Is the youth comfortable with open discussions of his or her sexual orientation or gender
private during the detention hearing?
Ensure a defense attorney represents the youth at the detention hearing.
tity. If the parent or custodian refuses to accept the youth back into the home because
close to the youth safely serve as a temporary placement for the youth? If not, are any
LGBT-competent nonsecure placements available?
Reject recommendations for detention that are based on unfounded biases about LGBT
youth.
95
Detaining a youth merely because his or her family refuses to allow him or her back home
is inappropriate and unnecessary. Instead, the court should order placement of the young
person in kinship care, foster care, or another nonsecure environment.18 Yet Equity Project
Consider whether a youth’s problems at school might be related to LGBT-stigma. If the
youth has a poor attendance record, is it related to harassment or abuse based on the
youth’s actual or perceived sexual orientation or gender identity?
HIDDEN INJUSTICE
Understand the youth’s immediate medical needs, if defense counsel or other parties
raise the issue in court. Is a transgender youth receiving hormone or other medical treatments, whether medically prescribed or not? If the youth is placed out-of-home, how can
the court ensure the continuation of treatment?
Ensure that LGBT youth are not placed in detention facilities unless staff can keep
them safe and treat them respectfully. If the LGBT youth is currently detained, has
the youth been treated respectfully? Have staff isolated or segregated the youth? Has
the youth experienced abuse because of his or her LGBT identity? Can the detention
facility adequately protect an LGBT youth from physical and sexual assault? Does the
youth have any mental health issues, including a trauma history that further compromises the youth’s safety in detention? If detained, is it necessary to issue an order
requiring the facility not to discriminate against the LGBT youth and to ensure the
youth’s physical and emotional safety?
Explore whether additional steps are needed to ensure the safety of transgender youth in
detention.
Will the facility house youth according to her or his gender identity rather than birth sex?
Is an order needed to require the facility to respect a transgender youth’s gender expression or to ensure the youth receives appropriate medical care?
Experiences of abuse and harassment increase the likelihood that LGBT youth
who are at low-risk of flight or reoffending will be detained.
history of running away, poor school attendance, or substance abuse.22 Problems at home
risk, even if the underlying offense in the case is nonviolent. LGBT youth’s experiences of
termination. For example, some LGBT youth skip school frequently to avoid harassment,
a factor which is counted against them at detention hearings. Similarly, many LGBT youth
have run away from home or out-of-home placements to escape abuse or harassment
based on their sexual orientation or gender identity. These youth might be detained as a
defender explained, “I have had a substantial number of gay [clients] that were already
runaways, and it’s considered to be an AWOL history, and that makes it more likely they
will be held, although that doesn’t necessarily mean they are more likely to skip court.”23
In some jurisdictions, detention decisions are based primarily on results of risk-screening
instruments that are administered at intake. Although these instruments are intended to
provide an objective basis for detention decisions, some individuals interviewed by Equity
Project staff raised concerns that screening tools in their jurisdictions led to the unneces-
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7
sary detention of LGBT youth. Equity Project Advisory Committee (EPAC) member Laura
Garnette, former Director of Juvenile Probation in Santa Cruz County, California, explained:
because many LGBT youth have a runaway history, poor school attendance, drug
or alcohol use, or no family to pick them up—all of which add points to their total
Detention determinations for LGBT youth are sometimes based on bias.
In some cases, biases against LGBT youth underlie the detention determination. A juvenile
defender described clients who were detained unnecessarily “when court counselors—
whose opinion the judge takes very seriously—categorized the youth’s LGBT identity as
an ‘instability’ or ‘acting-out behavior.’ ”25
believes LGBT youth are more likely to require detention than non-LGBT youth because
often they “are more aggressive and more confrontational.”26 Sometimes biases are built
into the risk-screening instruments; for example, one defender criticized the screening tool
in her northeastern state because it scores youth as “higher risk” if they have had sexual
experiences with someone of the same sex.27
Many jurisdictions lack alternatives to detention that
are appropriate for LGBT youth.
Juvenile courts should have a continuum of alternatives to secure detention available for
youth who, for safety reasons, cannot be released to their parent or custodian without some
type of services.28 Over the last few years, some jurisdictions have developed a variety of
alternatives to detention, but in many places such alternatives are still sorely lacking. Promising alternatives to detention include electronic
monitoring, shelter care, community supervision
by youth advocates, nightly reporting to community centers, and referral to caseworkers rather
than to court or probation personnel.29 Numerous
individuals interviewed for this project expressed
frustration about the fact that their jurisdictions
or that the programs in their jurisdictions refused
to accept, or were otherwise unsupportive of,
LGBT youth. Without adequate alternatives, EPAC
member and defense attorney Kim Forte explained,
“Many LGBT youth end up in detention when they
don’t need to be there. We need to have alternative
placements for LGBT youth that are friendly and
safe and have trained staff.”30
97
the real story. A gay kid who ran away from home because his family is abusing
him doesn’t need detention; he needs a safe and supportive home.24
Endnotes
1.
2.
3.
4.
HIDDEN INJUSTICE
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
98
Daniel J. Freed & Timothy P. Terrell, Institute of Judicial Administration-American
Bar Association Joint Commission on Juvenile Justice Standards, Juvenile Justice
Standards Relating to Interim Status: The Release, Control, and Detention of Accused
Juvenile Offenders Between Arrest and Disposition, 123 (1996) [hereinafter Juvenile
Justice Interim Status Standards].
Id.
See Elizabeth Calvin et al., Advocacy and Training Guide: Juvenile Defender
Delinquency Notebook 144 (2d ed. 2006), available at
http://www.njdc.info/delinquency_notebook/interface.swf.
Guidelines: Improving Court Practice in Juvenile Delinquency Cases 30 (2005) [hereinafter
Juvenile Delinquency Guidelines].
See Juvenile Delinquency Guidelines, supra note 4, at 81; see also Juvenile Justice Interim
Status Standards, supra note 1, at 119.
See generally American Bar Association Juvenile Justice Center, Youth Law Center, &
Juvenile Law Center, A Call for Justice: An Assessment of Access to Counsel and Quality
of Representation in Delinquency Proceedings (1995); Patricia Puritz & Katayoon Majd,
Ensuring Authentic Youth Participation in Delinquency Cases: Creating a Paradigm for
Specialized Juvenile Defense Practice, 45 Fam. Ct. Rev. 466, 466 (July 2007).
M. Sickmund, T.J. Sladky, & W. Kang, Census of Juveniles in Residential Placement Databook (2004), http://ojjdp.ncjrs.org/ojstatbb/Cjrp/; see also Barry Holman & Jason
Ziedenberg, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and
Other Secure Facilities 3 (Justice Policy Institute 2006).
Id.
Holman & Ziedenberg, supra note 7, at 3, 12.
See Eileen Poe-Yamagata & Michael A. Jones, Building Blocks for Youth, And Justice
for Some: Differential Treatment of Minority Youth in the Justice System (2000).
See Calvin et al., supra note 3, at 142.
Id.
Id.
Angela Irvine, Ceres Policy Research, The Inappropriate Use of Secure Detention for
Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Youth (2009), presented at the
Columbia University Gender on the Frontiers Symposium (Apr. 10, 2009) (available
Inappropriate Use of Secure Detention] Results of the
2009 Ceres Policy Research study will appear in 19 Columbia Journal of Gender & Law
(forthcoming 2010).
This 13 percent number includes some youth categorized by the researcher as “not
straight” based on their responses to other questions on the survey, rather than on
the youth self-identifying as LGBTQ. Youth categorized as “not straight” either
answered every other demographic question on the survey, but skipped the question
asking about sexual orientation, or they answered “yes” to the question, “Have you
ever been bullied or harassed at school because of your sexual orientation (being
lesbian, gay, etc.).”
7
17.
18.
19.
20.
21.
22.
23.
Id. at 6.
Equity Project interview with a juvenile justice professional (Mar. 7, 2008).
See Calvin et al., supra note 3, at 144-145.
24.
25.
26.
27.
28.
29.
Equity Project interview with Laura Garnette (Jan. 6, 2008).
Equity Project interview with a juvenile justice professional (Feb. 14, 2008).
See Juvenile Delinquency Guidelines, supra note 4, at 81-83.
See The Annie E. Casey Foundation, Detention Reform: A Cost-Saving Approach (2007),
available at http://www.aecf.org/upload/PublicationFiles/jdai_facts1.pdf. See also The
Annie E. Casey Foundation, Detention Reform: An Effective Public Safety Strategy (2007),
available at http://www.aecf.org/upload/PublicationFiles/jdai_facts2.pdf; The Annie
E. Casey Foundation, Fact Sheet: A Roadmap for Juvenile Justice (2008), available at http://
www.aecf.org/~/media/PublicationFiles/FINAL%20%20%202008%20Juvenile%20
Justice%20Fact%20Sheet%20%20%20with%20logo.pdf.
30. Equity Project interview with Kim Forte (Dec. 3, 2007).
99
16. Angela Irvine, Ceres Policy Research, Youth Hype Drug and Alcohol Use Survey:
Summary of Findings Related to LGBQ, Latino, and Foster Youth in Santa Cruz, CA (2008)
Chapter 8
8
Unsafe and Unfair Conditions of Confinement
for LGBT Youth
“We have a way harder life when we’re incarcerated. Straight people have a hard time here,
but homosexuals are raped, get food thrown at them, are jumped, humiliated,
God knows what will happen to them.”1
—Dale, 15-year-old white gay male youth
receive adequate health care and fair and nondiscriminatory treatment.2 Juvenile justice
professionals have a corresponding responsibility to protect these rights. Detention staff
3
In most jurisdictions, judges also
4
Similarly, defense attorneys have a responsibility to challenge any deprivation of rights that clients
suffer in secure facilities.5
facilities face serious, well-documented harms. Many facilities are overcrowded, provide
minimal training to staff, and offer little or no supervision or programming to youth.6
Medical care is notoriously poor, and meaningful mental health treatment is denied to
many incarcerated youth.7 Countless youth experience assaults, rapes, and beatings by
other youth and staff.8
In 2006, a groundbreaking lawsuit exposed the egregious treatment of LGBT youth conR.G. v. Koller, three LGBT youth
them from relentless physical, emotional, and sexual abuse by other youth.9 The court
court found that HYCF (1) failed to protect the plaintiffs from physical and psychological
abuse, (2) used isolation as a means to protect LGBT youth from abuse, (3) failed to provide
system that protects vulnerable youth.
R.G. v. Koller were
not unique. Professionals interviewed for this report overwhelmingly agreed that LGBT
youth face particularly acute abuse, harassment, isolation, and disrespect because of their
sexual orientation or gender identity.
101
Unsafe and Unfair Conditions of Confinement for LGBT Youth
The United States Constitution extends critical rights to detained and incarcerated youth,
including the right to be free from physical, emotional, and sexual abuse, as well as un-
LGBT Youth Suffer Physical, Sexual, and
Emotional Abuse in Facilities
[call you names, like] gay bitch.”10
—Brianna, a 17-year-old black-Asian lesbian youth
HIDDEN INJUSTICE
LGBT youth are particular targets for violence within facilities. Approximately 80 percent
of Equity Project survey respondents indicated that lack of safety in detention was a serious problem for LGBT youth, and more than half of detention workers surveyed reported
having personal knowledge of instances in which detained LGBT youth were mistreated
because of their sexual orientation or gender identity. Interviews also revealed a widespread
pattern of bullying, harassment, and name-calling of LGBT youth by staff and other youth
studies. In 2001, the Urban Justice Center documented pervasive verbal and physical harassment and abuse from staff and peers of incarcerated LGBT youth in New York.11 Eight years
later, a publication of the National Council on Crime and Delinquency found that many
openly LGBT youth in California juvenile facilities had been sexually assaulted while incarcerated, and staff regularly failed to respond appropriately.12 As Captain Young, Equity
Project Advisory Committee (EPAC) member and youth advocate, explained:
There are problems with the system for all youth, but it’s worse for LGBTQ youth.
Being LGBTQ in juvenile hall is a forbidden taboo. LGBTQ youth are not told, “It’s
OK to be who you are.” Instead they get the message that they’re bad. LGBTQ
youth are harassed, isolated, charged with crimes for having relationships, punished and have their privileges revoked for no reason, placed on medication, or
jumped by other youth who’ve been ordered by staff to jump them.13
When abuse or harassment occurs, facility administrators have a legal responsibility to ensure
that staff intervene promptly to protect the safety of residents.14 Some facilities have taken
seriously this responsibility to protect LGBT youth. Staff in one facility administer a weekly
checklist to all youth to determine, for example, whether youth have been harassed by staff or
peers and whether they are depressed or lonely. This checklist reportedly has helped create a
culture in which youth feel comfortable expressing safety concerns to a detention supervisor.
Another facility allows young gay boys with nonviolent offenses to participate in programming with the girls’ unit if they feel safer doing so. A few jurisdictions, including King County,
Washington; San Francisco; Los Angeles; New York City; New York state; Hawai‘i; the District
of Columbia; and Michigan,15
tion policies to protect LGBT youth in detention and correctional facilities.
Unfortunately, ample evidence exists that many other secure detention and correctional
facilities fail to keep LGBT youth safe.16 Interviews with juvenile justice professionals revealed many instances of facility staff across the country who failed to intervene to stop the
abuse of LGBT youth. One defender stated, “For years, staff in [our] facilities have allowed
kids to bully kids in the dining hall and harass them,”17 and other professionals stated that
facility staff accuse LGBT youth who report abuse of lying or exaggerating.
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8
Ms. Riley-Collins was able to secure her client’s release from the facility.18 She explained,
“It was like pulling teeth to get this kid out, even though everyone, including the head of
the Department of Juvenile Justice, clearly knew what had happened.”19
enteen-year-old Reynaldo explained that staff in facilities tell other youth when someone
is gay so that they will beat up the gay youth.20 Several other youth and professionals
reported that staff let other youth into the rooms of LGBT youth, knowing that they will attack the youth. In one particularly violent episode, one youth, Robert, said a staff member
allowed a few boys into a bisexual youth’s cell to assault him. Robert recalled, “I woke up
and saw blood on the walls and on the ground. I heard [the beating] going on the whole
night. Even the curtains were bloody.”21
Practice Tips: Preventing Harassment in Secure Facilities
To create a climate of nonviolence and respect for all residents and ensure the safe
integration of LGBT youth into their facilities, staff should:
Adopt policies that prohibit discrimination and harassment based on sexual orientation or gender identity. (See Model Policy and Practice Guidelines, Appendix E.)
that disrespect and intolerance of any kind is prohibited.
Provide a range of supportive and programmatic services that meet the needs of
individual youth and keep them engaged in meaningful activities.
Take swift action to stop bias or harassment on the basis of sexual orientation or gender identity or gender expression when it occurs and address the underlying issues.
Provide diversity training for all youth in the facility. Make available reading material
that includes positive images of youth from different backgrounds and fosters acceptance and appreciation of diversity.
Develop activities and educational programs to celebrate the history, achievements,
women, and LGBT individuals.)
Create an orientation video that celebrates diversity and describes the harms that
result from name-calling, bullying, and harassment.
103
EPAC member and defense attorney Jennifer Riley-Collins described the experiences of
a gay client who was violently assaulted in a facility. The guards allowed her client to
shower by himself to prevent further abuse, but one day as he left the shower, another
youth sexually assaulted him with a broom handle, causing injuries that required immediate medical attention. Rather than investigating the incident and ensuring the youth was
safe, the facility staff accused him of lying. Ms. Riley-Collins turned to the courts for help,
but the judge required the youth to undergo a forensic examination before he would inter-
LGBT Youth Experience Pervasive Disrespect and Unfair Treatment
“On my juvenile hall record, they put a big ‘H’ [for homosexual].”22
—Andrew, a 17-year-old Latino gay male youth
All youth in state custody have a federal constitutional right to equal protection under the
law,23 which means that juvenile justice providers must not impermissibly discriminate
against youth when determining placements, delivering services, and responding to comties discriminate against LGBT youth in several ways.
HIDDEN INJUSTICE
Facility staff punish LGBT youth for benign behaviors that they
mistakenly assume are sexually predatory.
“If I was talking to another girl, they’d think something sexual was happening. Once
I was put on isolation for two weeks, they thought I was getting too close to a female. . .
that made me feel real depressed.”24
– Devon A., a lesbian youth, quoted in Custody and Control
A consistent theme in interviews was that detention staff often “sexualize” LGBT youth,
or perceive benign interactions by LGBT youth as sexual overtures towards others. One
young man, Joseph, explained, “Every time I was interacting or having a fun time with
tracted to someone who I am interacting with.”25 According to EPAC member Marynella
Woods, a social worker in the juvenile division of the San Francisco Public Defender’s Of26
A young bisexual woman, Lucy, described being accused of
being “singled out” as a “loner girl.”27
These false assumptions lead to discriminatory treatment. Interviewees reported that some
staff forced LGBT youth to shower separately or prohibited them from sitting next to other
youth because of a fear that they would somehow try to “make the other youth gay.” And
22-year-old Tyler said he was forbidden from interacting with other gay youth because
gay or more lesbian.”28
Another theme that emerged from our interviews was that staff tend to overreact to developmentally appropriate displays of affection, such as hugging or hand-holding, between
girls in particular. The American Civil Liberties Union and Human Rights Watch also documented that staff singled out lesbian youth for expressing affection toward others in a
2008 report about girls in New York juvenile justice facilities. This report found that staff
members punished girls whom they perceived to be lesbians for writing letters or blowing kisses at other girls because this was seen as “lesbian behavior.”29 EPAC member Dr.
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8
Marty Beyer explained, “Staff view this type of activity as predatory behavior, rather than
what it is—a longing for closeness typical of girls as they develop.”30
“When I arrived at the facility, they ripped the weave out of my hair, broke off my
nails, wiped my makeup off, stripped me of my undergarments, and made me wear
male underwear and clothes.” 31
– a 17-year-old male-to-female transgender youth
(interview conducted by the Model Standards Project, 2003)
“Every little tiny thing I did I would get in trouble. I think it’s because I’m transgender and
they didn’t understand.”32
—Michael, a 17-year-old female-to-male transgender youth
Medical experts agree that preventing transgender youth from expressing their gender identity or punishing them for doing so increases the
distress they experience; undermines
their emotional stability; and interferes with their care, treatment, and
rehabilitation.33 For this reason, a New
York court in 2003 ordered an all-boys
group home to make a reasonable accommodation in its dress code and
allow the plaintiff, a transgender girl,
to wear skirts and dresses.34 The court
was particularly concerned with the
importance of adhering to the plaintiff’s prescribed medical treatment for
gender identity disorder, which called
for her to wear feminine clothing.35
In the juvenile justice system, howevties routinely force transgender youth
to conform to societal gender norms
despite the serious harms that can result. All of the transgender youth in
the focus groups reported that facility
staff refused to call them by their preferred name and pronoun. One trans-
105
Facility staff punish, ridicule, and prevent transgender youth from expressing
their gender identity.
gender girl, Kiana, explained, “I never had problems with boys; I had problems with the
staff. They were really unprofessional [and] would call me ‘him,’ ‘he,’ [and] say ‘Why is
he in here?’ ”36
HIDDEN INJUSTICE
as threatening or sexually predatory and discipline them when they express their gender
identity. One detention staff person recounted forcing a transgender girl to dress in a stereotypically masculine manner as soon as she arrived at the facility. This staff person comright in with the boys. There [weren’t] any problems.”37 Several transgender girls reported
that the staff placed them on lockdown or gave them disciplinary tickets for having long
hair, wearing their hair in braids, or wearing their pants too tight.38 In one boys’ detention
facility, a juvenile justice advocate explained that “there was a large effort—a ‘campuswide decision’—to inform everyone on the campus that no one was to call this [transgender] youth a girl because that was ‘unacceptable.’ And if anyone did call her ‘girl,’ they
would be reported.”39
Facilities Make Inappropriate Decisions about Housing and
Classification of LGBT Youth
In addition to the pervasive abuse and harassment that LGBT youth face in facilities, inapular, some facilities isolate or segregate LGBT youth from others, and most automatically
place transgender youth according to their birth sex, rather than gender identity, without
examining the impact this might have on the youth’s safety and well-being.
Some facilities isolate or segregate LGBT youth.
“As soon as they found out that I was gay, they singled me out. They had me go to this
one isolated room. I remember thinking at that point, “Oh my God,
they are doing this because I am gay.”40
—Tyler, a 22-year-old Native-American gay male youth
and
conditions or practices that amount to punishment. According to the American Psychiatric Association, which opposes the practice, isolation of youth within juvenile justice facilities “is a form of punishment and is likely to produce lasting psychiatric symptoms.”43 As
the court in R.G. v. Koller noted, the practice of isolating LGBT youth—even to protect them
from their abusers—violates due process.
41
42
Given the pervasive harassment and abuse directed at LGBT youth, protecting their safety
is unquestionably a legitimate concern. However, instead of isolating LGBT youth, facility
is best achieved by ensuring appropriate staff-to-resident ratios; modeling respectful be-
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8
havior; providing close supervision of residents; promptly intervening to interrupt any
disrespect, harassment or abuse directed at other youth; and keeping youth meaningfully
engaged in constructive programming.
situation is violent, then there is a need to protect the youth being affected by the violence,
and although segregation of the targeted youth is not necessarily the best or only solution, it happens.”44 Another defense attorney said such isolation was necessary because the
detention facility in her jurisdiction “is a horrid, absolutely terrible place” that lacks the
supervision necessary to ensure safety.45
In focus groups, youth described the negative repercussions they faced from such isolation. Claire, a 21-year-old, noted, “If ultimately the goal is to get these kids out of the system and keep them out, then alienating them is not going to help in any way.”46 Several
youth explained that by isolating them, the facility only drew attention to the youth and
made them more vulnerable to abuse. Twenty-two-year-old Tyler explained:
It was horrible because I was the only one in detention that had my own room
and everyone was wondering, “Why doesn’t he have a roommate?” Of course,
if you’re smart you try to keep to yourself and not talk about why you are in
there. But that is kind of a dangerous situation because then the rumors start.
I remember being accused of all kinds of things that were not even close to the
reasons I was in there. But I knew in my heart that the only reason I didn’t have
a roommate was because I’m gay. And it was their way of probably trying to
protect me in some way. I think even more so they were making a statement that
it’s not okay to be gay.47
Like Tyler, many LGBT youth experience segregation and isolation (or as one youth put
it, “the rounding up of the homosexuals”)48 as a form of punishment. The court in R.G. v.
Koller recognized that “[t]he likely perception by teenagers that isolation is imposed as
punishment for being LGBT only compounds the harm.” As the court found, “Consistently placing juvenile wards in isolation, not to impose discipline for violating rules, but
simply to segregate LGBT wards from their abusers, cannot be viewed in any reasonable
light as advancing a legitimate nonpunitive governmental objective.”49
Interviewees from several jurisdictions reported that facilities routinely segregate LGBT
youth from others, not to protect them, but because they hold a common but discredited stereotype that LGBT youth are sexually predatory. One youth, Frankie, put it simply, “They were afraid that I would rape my cellmate [because of my sexual orientation
and gender identity.]”50 An administrator at a 24-bed detention facility that has two beds
per room said she usually placed a bisexual or lesbian youth in a room by herself. She
107
youth in an attempt to keep them safe. Some facilities have informal policies to automatically segregate all youth who self-identify as LGBT or are perceived to be LGBT. Well-intentioned juvenile justice professionals often view isolation as the only solution for protect-
explained that this practice arose because when lesbian girls were placed in rooms with
other girls, parents became upset, believing “there would be sexual activity and the lesbian
youth would try to make their daughter lesbian.”51 In another jurisdiction, a probation ofsleep by him or herself at night, although “during the day the LGBT youth is treated the
same as everyone else.”
Many facilities automatically house transgender youth according to their birth
sex without evaluating the impact this might have on the youth.
HIDDEN INJUSTICE
“[We] have a hard enough time housing males and females on the same campus much less
MTF or FTM youth with females and males, respectively. Boys and girls are generally kept
separately from each other and so for this particular population there has not been very
much done. The accepted rationale is ‘Boys are boys and girls are girls, so boys will live with
boys and girls will live with girls.’ ”52
—a juvenile justice professional
cilities are segregated by sex, and intake staff must decide whether to assign transgender
youth according to their gender identity or birth sex. EPAC member Dr. Bob Bidwell is a
pediatrician at the Hawai‘i Youth Correctional Facility (HYCF).53 He believes that male-tofemale transgender youth should be housed with other girls because:
Such a placement increases the likelihood of keeping the child physically safe . . .
As an adolescent medicine and pediatric physician who is concerned about the
development of youth, I am concerned about the effects of being placed based on
he or she is, in fact, the other gender. Such a practice goes against the prevailing recommendations of pediatrics, psychology, social workers, and other youthserving professionals that individuals should be treated in accordance with their
54
to Dr. Bidwell. “Ideally, transgender boys would be housed with the other boys, and in
certain circumstances this may be possible,” but because of the high level of violence in
many boys’ facilities and the high risk of physical and sexual abuse that transgender boys
could face if the other boys learned that they were not born male, most transgender boys
would be safer in girls’ facilities.55 In project focus groups, many of the transgender boys
echoed these concerns about their safety if housed with boys. As Jamal explains, “My body
has changed, but I’m not going to be ignorant [about what it would be like in the boys’
unit] because I know how the males are.”56 According to Dr. Bidwell, “If a transgender boy
cannot be safe with the boys, he can be placed with the girls, but only if his male identity
is acknowledged and respected by the staff and other youth.”57 The transgender boys who
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8
spoke with Equity Project representatives, however, explained that staff in girls’ facilities
regularly refuse to provide the necessary level of respect for gender nonconforming youth.
Practice Tips: Housing and Classification of Transgender Youth
Intake staff in detention and correctional facilities should not automatically house
transgender youth according to their birth sex.
tion of his or her safety.
Staff should also consider the youth’s privacy concerns, available housing options, and
recommendations from the youth’s mental health providers regarding appropriate houslar expertise on these issues to make placement decisions for transgender youth.
In most cases, facilities should house transgender youth according to their core
gender identity rather than their birth sex. However, in some cases, it may be necessary to place transgender youth according to birth sex to protect their physical and
emotional well-being. This is particularly true for transgender boys who face high risk
of assault in boys’ facilities if the other boys discover they are transgender.
Facilities must accommodate transgender youth by providing access to private bathrooms and showers, when necessary, or a single room for sleeping. Privacy accommodations should not prevent transgender youth from full integration into the facilities’
daily programming.
Facilities might consider housing a transgender youth in a mixed-gender unit or program.
Such placements reduce a transgender youth’s vulnerability to violence and harassment
The psychological and physical harms resulting from the inappropriate placement of
gender roles, as well as physical and sexual abuse perpetrated by residents and facility
“Showers were a big deal because it’s open space and you can’t pull your curtains,”58 Fox, a
female-to-male transgender youth explained. One young transgender girl with developed
breasts was expected to shower at the same time as the 13 boys from her unit during her
detention in a boys’ facility.59 Fearing sexual assaults by the boys, she refused to shower
with them, but the staff would not make any accommodation for her. It was not until her
109
The following recommendations are designed to help guide staff in detention and cor-
Most facilities simply house youth according to their birth sex and do not consider alternative arrangements. Some have never given the matter any consideration. In facilities that
have considered the issue, the most common explanations for housing transgender girls
with boys were that it is not safe to house them in the girls unit and that the law requires
it. Both explanations are based on the misperception that transgender girls are really boys.
For example, one juvenile justice professional explained, “It’s against the law to put these
boys with the girls.”60
A few facilities that house transgender girls in boys’ units do attempt to provide appropriate services to these youth by involving transgender girls in the facility’s daytime girls’
HIDDEN INJUSTICE
have to be innovative for certain folks so they don’t get targeted or hurt, in any way, either
mentally or physically.”61 Several professionals expressed a desire to support transgender
youth but were uncertain about how to properly protect them in secure facilities. One
judge clearly supported a transgender girl in his courtroom; for example, he assigned her
“we didn’t think it was safe to place her with the other girls. We couldn’t put someone
clearly gendered a boy in girls’ detention.”62
Spotlight on Reform: Conditions of Confinement—
The New York Example
The Correctional Association of New York coordinates the Juvenile Justice Coalition, a coalition of advocacy groups focused on systemic reform. During the Coalition’s strategic planformed a working group dedicated to improving the system’s response to this population.
The coalition has lobbied the New York legislature to raise awareness of the abuses experienced by LGBT youth in state institutions and detention facilities; advocated for the adoption of the New York City Department of Juvenile Justice’s (DJJ) Anti-discrimination Policy
for LGBT Youth and conducted training for youth on the policy; and drafted the Incarcerated
Youth Bill of Rights to codify the rights enumerated in the DJJ policy.
In 2007, the Correctional Association met with Gladys Carrion, who was then the new
ble for both child welfare and juvenile justice services in New York State. At Ms. Carrion’s
suggestion, a workgroup was created to address issues related to LGBT youth in OCFS
custody. The workgroup, which met every two months, was comprised of juvenile justice
the workgroup has:
Revised OCFS guidelines related to LGBT youth and drafted an OCFS policy statement
incorporating these guidelines, which passed in March 2008;
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8
Created a youth-friendly insert about the policy for the residence manual distributed
to young people upon entering a juvenile justice facility;
Monitored training efforts on the policy and guidelines;
Developed a resource guide for young people leaving the facilities;
Created a Pride Kit with a list of speakers and activities for celebrating LGBT Pride
Month in the facilities.
At the time of this writing, the OCFS policy is the most comprehensive of its kind. The policy:
Prohibits discrimination based on actual or perceived sexual orientation, gender
expression or gender identity.
Includes revised guidelines for good childcare practices for LGBT youth.
Mandates OCFS to provide strength-based training to all DJJ staff, the ombudsman’s
Requires OCFS to provide all youth in its facilities and aftercare programs with written
and verbal information regarding the policy.
Establishes an LGBTQ Decision-Making Committee within the Bureau of Behavioral
Health Services, which is in charge of placement decisions and uniforms for transgender youth.
Ensures that OCFS will have designated units within its facilities with staff trained to
provide services for LGBTQ youth.
such as initiation and continuation of hormone treatment; clothing, hair, and other
personal grooming; language and name; individual bedrooms and bathroom facilities
and showering, as well as search issues.63
Facilities Fail to Ensure the Medical Needs of
Transgender Youth Are Met
distress, dysfunction, debilitating depression and, for some people without access to
appropriate medical care and treatment, suicidality and death.”64
—American Medical Association
“I said I’m going to get sick if I don’t get my hormones, but no one cared.”65
—Kiana, a 16-year-old multiracial male-to-female transgender youth
All youth in detention and correctional facilities have the right to adequate medical and
mental health care, and facilities must provide general medical services for both prevention and treatment.66 For transgender youth, these services might include providing medi111
Assisted OCFS in the development of a questionnaire focused on parents’ relationship to their children regarding their children’s sexual orientation and gender identity;
and
cal care related to a diagnosis of gender identity disorder. Denying appropriate treatment
to these youth poses serious risk of negative health and social consequences, including
depression, suicide attempts, and self-treatment, as described in Chapter 3. The American
Psychological Association has issued a policy statement supporting “access to appropriate
treatment in institutional settings for people of all gender identities and expressions, including access to appropriate health care services including gender transition therapies.”67
Yet as Dr. Bidwell explained:
HIDDEN INJUSTICE
Too often detention and correctional facilities just don’t know what to do with a
transgender youth and so they just do nothing. There are resources that they could
use to learn about transgender youth and their medical and psychological needs.
Instead, it seems a lot easier just to ignore the youth’s needs and insist the youth
conform to his or her biological gender, while offering no support or protection
from the harassment by staff and other youth that inevitably occurs.68
A lack of understanding of the critical importance of hormone treatment is one problem.
Some transgender youth obtain hormones on the street. When they enter detention facilities, the sudden withdrawal from hormones can have serious negative health consequences. One defender reported that she represented a male-to-female transgender client
wouldn’t allow her to take them.69
Rodriguez v. Johnson and the Importance of Hormone Treatment
Rodriguez v. Johnson involved a secure facility in New York that abruptly terminated a transgender young woman’s hormone treatment when she arrived at the facility. The abrupt
withdrawal from the medical care she had been receiving for almost four years led to nausea, headaches, and increased facial hair, as well as severe mental distress. Despite her
attorney’s efforts, the facility continued to refuse to provide her with this medically necesChildren and Family Services (OCFS) for their failure to provide her with adequate medical
care.70 The case eventually settled out of court. The settlement included monetary damages for the young woman and an agreement by the state to implement changes to ensure
the safety and appropriate treatment of transgender youth in its care.71 OCFS has since adment—The New York Example” text box on Page 110).
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8
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
Equity Project focus group, Dale, a 15-year-old white, gay male youth (July 11, 2008).
See R.G. v. Koller, 415 F. Supp.2d 1129, 1157 (D. Haw. 2006); A.M. v. Luzerne, 372 F.3d
572, 579 (3rd Cir. 2004); Alexander S. v. Boyd, 876 F. Supp. 773, 782 (D.S.C. 1995) aff’d
in part and rev’d in part on other grounds, 113 F.3d 1373 (4th Cir. 1997).
All but one detention staff person surveyed for this report acknowledged that they
have this responsibility.
Guidelines: Improving Court Practice in Juvenile Delinquency Cases 144, 177 (2005)
See Elizabeth Calvin et al., Advocacy and Training Guide: Juvenile Defender Delinquency
Notebook 245 (2nd ed. 2006), available at http://www.njdc.info/delinquency_notebook/
interface.swf; Daniel J. Freed & Timothy P. Terrell, Institute of Judicial AdministrationAmerican Bar Association Joint Commission on Juvenile Justice Standards, Juvenile
Justice Standards Relating to Interim Status: The Release, Control, and Detention of Accused
Juvenile Offenders Between Arrest and Disposition, 173-75 (1996) [hereinafter Juvenile Justice
Interim Status Standards]; Juvenile Delinquency Guidelines, supra note 4, at 181, 184-87.
See generally Calvin et al., supra
Delinquency Prevention,
Facilities: Research Report 49 (1994).
See, e.g., A.M., 372 F.3d at 584-585; Calvin et al., supra note 5.
See Barry Krisberg, Special Report: Breaking the Cycle of Abuse in Juvenile Facilities (National Council on Crime and Delinquency, 2009); Parent et al., supra note 6; R.G., 415
F.Supp.2d at 1144-45; A.M., 372 F.3d at 588.
R.G., 415 F. Supp.2d at 1133.
Equity Project focus group, Brianna, a 17-year-old black-Asian, lesbian female youth
(May 5, 2008).
Randi Feinstein, et al., Justice for All? A Report on Lesbian, Gay, Bisexual, and
Transgendered Youth in the New York Juvenile Justice System 2 (Urban Justice Center
2001).
Krisberg, supra note 8, at 3.
Equity Project interview with Captain Young (Dec. 28, 2007).
R.G., 415 F.Supp.2d at 1162; A.M., 372 F.3d at 581, 583.
Michigan’s policy covers sexual orientation, but not gender identity.
Feinstein et al., supra note 11, at 32-34; Shannan Wilber, Caitlin Ryan, & Jody
Marksamer, Child Welfare League of America Best Practice Guidelines: Serving LGBT
Youth in Out-of-Home Care 6-8 (2006); Krisberg, supra note 8, at 2-3.
Equity Project interview with Jennifer Riley-Collins (Dec. 7, 2007).
Id.
Equity Project focus group, Reynaldo, a 17-year-old Native American, straight male
youth (May 4, 2008).
Equity Project focus group, Robert, an African-American straight male youth (age
not provided) (Apr. 22, 2008).
Equity Project focus group, Andrew, a 17-year-old Latino, gay male youth (May 4,
2008).
U.S. Const. amend. XIV, § 1.
Human Rights Watch & American Civil Liberties Union, Custody and Control:
113
Endnotes
25.
26.
27.
28.
29.
30.
31.
32.
HIDDEN INJUSTICE
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
76 (2008) [hereinafter
Custody and Control].
Equity Project focus group, Joseph, a 21-year-old white, genderqueer youth (Apr. 17,
2008).
Equity Project interview with Marynella Woods (Dec. 3, 2007).
Equity Project focus group, Lucy, a 19-year-old white bisexual female youth (Apr. 17,
2008).
Equity Project focus group, Tyler, a 22-year-old Native American, gay male youth
(Apr. 17, 2008).
Custody and Control, supra note 24, at 75.
Equity Project interview with Marty Beyer, Ph.D. (Nov. 27, 2007).
Interview with 17-year-old male-to-female transgender youth, Legal Services for
Children for the Model Standards Project (Feb. 28, 2003).
Equity Project focus group, Michael, a 17-year-old white, female-to-male transgender
youth (Apr. 11, 2008).
Gianna E. Israel & Donald E. Tarver II, Transgender Care: Recommended Guidelines,
Practical Information, and Personal Accounts 132–41 (Temple University Press 1997);
Walter Meyer III et al., The Harry Benjamin International Gender Dysphoria Association’s
Standards of Care for Gender Identity Disorders 12 (6th ed. 2001) [hereinafter Standards
of Care].
Doe v. Bell, 754 N.Y.S.2d 846, 853 (N.Y.S.C. 2003).
Id.
Equity Project Interview with juvenile detention staff (July 26, 2007).
See also Jody Marksamer, And by the Way, Do You Know He Thinks He’s a Girl? The Failures of Law, Policy, and Legal Representation for Transgender Youth in Delinquency Courts,
5:1 Sexuality Research & Social Policy 72, 82 (2008).
Equity Project interview with a juvenile justice professional (Apr. 10, 2008).
Id.
Alexander S., 876 F.Supp. at 798; R.G., 415 F.Supp.2d at 1152.
, 441 U.S. 520, 539 (1979); see also Milonas v. Williams, 691 F.2d 931,
942 (10th Cir. 1982) (“any institutional rules that amount to punishment of those
43. American Psychiatric Association, News Release No. 09-12: Incarcerated Juveniles Belong
in Juvenile Facilities (Feb. 27, 2009), available at http://www.psych.org/MainMenu/
Newsroom/NewsReleases/2009NewsReleases/IncarceratedJuveniles.aspx.
46. Equity Project focus group, Claire, a 21-year-old white lesbian female youth (June 2,
2008).
47. Equity Project focus group, Tyler, a 22-year-old Native-American, gay male youth
(Apr. 17, 2008).
48. Correspondence from youth advocate to the Equity Project (Feb. 17, 2008) (quoting a
youth with whom he worked).
49. R.G., 415 F.Supp.2d at 1155-56.
50. Equity Project focus group, Frankie, a 22-year-old Native-American, two-spirit,
-
114
tion of two-spirit).
51. Equity Project interview with juvenile detention staff (Apr. 5, 2008).
52. Equity Project interview with a juvenile justice professional (Feb. 25, 2008).
53. HYCF has placed every transgender girl except one with other girls for the past 16
years. In 2007, the facility adopted a written policy relating to LGBT youth that commits the facility to making placement decisions related to all transgender youth on a
case-by-case basis.
54. Declaration of Robert J. Bidwell at 14, 19, R.G. v. Koller, 415 F.Supp.2d 1129 (D. Haw.
2006) (No. 05-566).
55. Correspondence from Robert Bidwell to Legal Services for Children (July 4, 2006) (on
56. Equity Project focus group, Jamal, a 19-year-old African-American, female-to-male
57. Bidwell, supra note 55.
58. Equity Project focus group, Fox, a 21-year-old, female-to-male transgender youth
(June 2, 2008).
59. Interview with anonymous youth, Legal Services for Children for the Model
Standards Project (Feb. 2003).
60. Equity Project interview with a juvenile justice professional (July 26, 2007).
61. Equity Project interview with a juvenile justice professional (Mar. 6, 2008).
62. Equity Project interview with a juvenile judge (Feb. 22, 2007).
64.
65.
66.
67.
68.
69.
70.
Lesbian, Gay, Bisexual, Transgender and Questioning Youth” (Mar. 17, 2008), available at
.
American Medical Association, “Resolution 122: Removing Financial Barriers to Care
for Transgender Patients” (2008).
See Youngberg v. Romeo, 457 U.S. 307 (1982); A.M., 372 F.3d at 572, 585 n.3; Jackson v.
Johnson, 118 F. Supp. 2d 278, 289 (D.N.Y. 2000); Alexander S., 876 F. Supp. at 788.
American Psychological Association, “Policy Statement: Transgender, Gender Identity, & Gender Expression Non-Discrimination,” (adopted Aug. 2008),
http://www.apa.org/pi/lgbc/policy/transgender.html.
Equity Project interview with Dr. Robert Bidwell (Nov. 27, 2007).
Complaint at 2–3, 6, Rodriguez v. Johnson
71. Settlement Agreement, Rodriguez v. Johnson, No. 06CV00214 (S.D.N.Y. settled Nov. 13,
115
8
Chapter 9
9
Barriers to Zealous Defense Advocacy
for LGBT Youth
“No single action holds more potential for achieving procedural justice for the child in the
juvenile court than provision of counsel.”1
—President Johnson’s Commission on Law Enforcement
and Administration of Justice, 1967
“I wish my lawyer was more understanding of LGBT youth instead of just saying it’s a
confusion thing—a stage in life you’ll grow out of.”2
In re Gault,3 is arguably the most critical. As
national standards recognize, juvenile defenders are “essential to the administration of
justice and to the fair and accurate resolution of issues at all stages of [the] proceedings,”4
serving as an important check on abuses of the state and holding the juvenile justice system
accountable. Without effective legal representation, a young person stands little chance of
defending herself and invoking her due process rights.5 Since juvenile courts have become
more punitive over the last few decades, the stakes associated with denial of the right to
counsel today are even higher than in years before.
Despite the importance of counsel’s role, national and state assessments of juvenile indiand quality of—counsel.6 Youth regularly appear unrepresented in many courts because
they are permitted, and even encouraged, to waive their right to counsel without understanding the consequences of doing so.7 Inconsistent appointment practices, overwhelmquality of legal representation that youth receive.8 Underlying these barriers is a deeply
entrenched court culture of paternalism which continues to allow shortcuts to due process
to advance what professionals believe is in the child’s “best interests.” As a result, a shocking lack of defense advocacy pervades many courtrooms.
For all youth, including LGBT youth, the denial of effective legal representation can increase the likelihood of false confessions, unconstitutional guilty pleas, wrongful convictions, and harmful detention and incarceration.9 For LGBT youth, additional barriers to
quality representation have unique implications.
Defense Counsel: an Essential Role in Protecting
the Rights of LGBT Youth
Juvenile defenders play a highly specialized and complex role in the juvenile court system.
They must thoroughly investigate each case; regularly communicate with and counsel clients; advise clients of the collateral consequences of an adjudication; prepare a defense;
represent clients at all critical stages of the case; protect the clients’ due process rights; advocate for the most appropriate disposition consistent with the client’s expressed interests;
117
Barriers to Zealous Defense Advocacy for LGBT Youth
—Russell, a 21-year-old white bisexual male youth
ensure the state’s compliance with court orders; ensure the safety of youth in facilities; advocate for clients’ educational, mental health, and other needs; and expose and challenge
the underlying systemic biases pervading the juvenile justice system.10
HIDDEN INJUSTICE
Juvenile defenders owe their clients the same ethical duties of loyalty, communication, and
diligence as those owed by adult criminal defenders.11 Numerous professional standards
and guidelines make clear that juvenile defenders must represent the clients’ expressed
interests, not what the defender believes is in the clients’ best interests.12
To discharge these duties effectively, defenders must understand the varied identities of
ity, immigration status, religion, and socio-economic status may have on each individual
client, so too must they understand the role that sexual orientation and gender identity
play in their clients’ lives. In addition, they must understand the ways in which biases of
the justice system render LGBT youth particularly vulnerable to abuse and discrimination.13
14
crimination] across the system.”
Experts have begun to examine the contextual issues related to sexual orientation and
gender identity that might arise during the course of delinquency representation. The University of Nevada, Las Vegas Conference on Representing Children in Families: Children’s
Advocacy and Justice Ten Years After Fordham convened a working group in 2006 to discuss the role of sex and sexuality in representing children. The working group made three
broad recommendations to assist lawyers in ensuring every client has equal access to services and receives fair and respectful treatment in court:
1. Lawyers should strive to ensure that their own internal biases do not compromise the
quality and effectiveness of their advocacy;
2. Lawyers should seek to remedy bias or discrimination against their client based on gender, sexual orientation, gender identity, or sexual conduct; and
3. Lawyers should advocate for law and policy changes to promote systems of care that
are fair, safe and respectful of each child’s dignity.15
While a youth’s sexual orientation and gender identity are not necessarily relevant in every case, defenders must keep in mind the numerous ways in which the issues can impact
the various stages of a case. Some examples include:
U Charging Decisions. Defenders should be aware of the potential for discriminatory
or inappropriate charges against LGBT youth, such as cases involving consensual
sex, and move to dismiss discriminatory charges on constitutional and statutory
grounds. Understanding the factors that lead youth into the system, such as harassment at school or familial rejection, will help defenders argue that the case is better
handled outside the court system.
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9
U Mitigation. Thorough investigation will help uncover mitigating factors. Abuse and
harassment at school, rejection by families, and homelessness of LGBT youth can
serve to mitigate the charges in particular cases.
U Disposition. Defenders should consult with their clients to create the most appropriate recommendations for disposition. Defenders should advocate against any placements that will be harmful to their clients, including those that are not sensitive to
LGBT youth. Defenders should also present expert testimony and reports to counter
any recommendations for harmful treatment services that are not consistent with
professionally accepted medical and mental health practices.
U Post-Disposition. Defenders should ensure the safety and respectful treatment
of youth in placements. If necessary, they should advocate for changing a youth’s
placement. Defenders should thoroughly investigate—and defend against—any allegations of probation violations.
Spotlight on Reform: Role of the Legal Community in Addressing
LGBT Youth Issues
The GLBT Bar Association of Washington, QLaw, formed the At-Risk Youth Committee in
2007 to address the legal needs of Washington’s at-risk LGBT youth. The committee,
which meets monthly, has created a web-based resource (www.qlawyouth.org) with information and resources to assist at-risk LGBT youth and their advocates. The committee
has revised the judge’s bench guide on sexual orientation and the law to include a section on youth law that addresses issues affecting LGBT youth and has conducted training
for judges based on the guide. Committee members also meet with youth at a local LGBT
drop-in center and residential facility to discuss legal issues raised by the young people.
Finally, QLaw has a foundation that funds law students in summer positions to work on
behalf of at-risk LGBT youth.
Several defenders described their efforts to engage in sensitive advocacy for LGBT clients.
in their jurisdictions by advocating for LGBT-supportive services for their clients instead
of inappropriate anger management classes. Others have challenged discriminatory comments made in the courtroom, reprimanded marshals for mocking LGBT youth, and disLGBT individuals.
119
U Detention Decisions. Defenders should vigorously advocate for their clients’ interests at detention hearings. For example, other parties might recommend detention
based on the fact that alternative programs in the jurisdiction will not accept the
youth. In such cases, the defender should argue that the legal standard for detention has not been met and offer creative alternatives to the court, such as placing the
youth with noncustodial relatives. Defenders should also ensure that LGBT clients
are not placed in detention facilities that are abusive or discriminatory.
Case Study: LGBT-Sensitive Defense Representation
In 2008, an attorney achieved a groundbreaking victory for her 15-year-old transgender client,
Mariana, who was detained while awaiting placement in a long-term residential treatment facil-
HIDDEN INJUSTICE
The clinic issued a report indicating a diagnosis of gender identity disorder and recommending the standard treatments for youth with this diagnosis. Based on the clinic’s report, the defender successfully argued that it was in Mariana’s best interest to receive
transition-related health care treatment. The court ordered that the youth could receive
puberty-delaying hormone therapy and transgender-supportive counseling. The judge also
practice, ordering the facility staff to refer to the youth by her preferred name and female
pronouns, allow her to keep her hair long, and permit her to dress in a manner consistent
with her gender identity. In addition, the order required the facility to ensure Mariana’s
safety and privacy when using the shower and bathroom and prohibited physical searches
by staff to determine her physical anatomy.16
According to the attorney, the order “has been pivotal for [her] client’s development and
well-being. It has allowed her to receive the standard transition-related medical and mental health treatment she needs, and it has given her hope that the courts and foster care
17
A redacted copy of the court
order can be found in Appendix D.
Broken Juvenile Indigent Defense Systems Hamper
Effective Representation of LGBT Youth
The well-documented problems with juvenile indigent defense delivery systems across
the country affect all youth, including LGBT youth. For LGBT youth, an added obstacle to
effective legal representation in juvenile courts is the lack of LGBT-sensitive advocacy on
the part of some juvenile defense attorneys.
Some defenders advocate directly against their client’s expressed interests
based on their own opinions about sexual orientation and gender identity.
“My lawyer doesn’t know me, but he knows I’m gay. He knows I want to leave this place,
but he told the court ‘don’t let him leave there.’ I don’t think that’s fair.”18
– Adam, a 14-year-old African-American gay male youth
The defense attorney is responsible for giving youth a voice in court and representing
the youth’s interests at every stage of the process. The duty to represent the expressed
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[T]he transgender girl may make us . . . uncomfortable, because we want to protect
her from herself. “Doesn’t she know that kids will pick on her for wearing dresses?
And why does she think she is a girl?” “What went wrong with her upbringing?”
“Isn’t this just a phase?” We must confront the fact that, in a delinquency case, a
transgender girl will possibly face detention. . . . advise her of the realities of conherself, and then do everything possible to ensure that she is safe.21
Defenders’ ethical and professional responsibilities to their clients, not their personal views
on sexual orientation and gender identity, should guide their advocacy. Seventeen-yearold Janelle, a transgender girl, described having had a positive experience with her defense
attorney who was able to put aside her initial discomfort with Janelle’s gender identity. As
got to know me and said, ‘We got to get you out of here and put you in a program that is
right for you.’ ”22 Janelle’s attorney was able to advocate successfully for her removal from
an inappropriate program and help get her the therapy and medical care she needed to
start her gender transition.23
For other LGBT youth, however, defenders’ reluctance
to represent their clients’
expressed interests deprives
them of the right to be heard.
Youth and professionals described instances in which
defenders advocated for
outcomes directly contradictory to what their clients
wanted because they lacked
sexual orientation or gender
identity issues.
121
interests of the client means that the youth, not the attorney, directs the representation. In
the context of LGBT youth, the defender’s role is not to determine whether each client is
LGBT, or to convince LGBT youth that they would be better served by hiding, revealing,
or changing their sexual orientation or gender identity.19 Rather, the defender’s role is to
effectively counsel their clients about all their legal options and the potential advantages
and disadvantages of each option, and to advocate in a manner that respects all clients,
regardless of sexual orientation or gender identity.20 As Professor Barbara Fedders has
explained:
Case Study: The Danger of “Best Interests” Representation
When 16-year-old Mary Beth defended herself against sexual harassment by classmates at
school because she was a lesbian, she was arrested for disorderly conduct.24 At her initial
delinquency hearing, Mary Beth, like many other youth, waived her right to an attorney,
A month later, Mary Beth violated the probation terms by leaving the house after school.
At the probation revocation hearing, she again waived her right to an attorney and pled to
contact with her girlfriend as a condition of probation. (Mary Beth’s mother believed that
the girlfriend’s father was pushing for the no-contact order because he disapproved of their
the no-contact order.
HIDDEN INJUSTICE
Two weeks later, Mary Beth was arrested for violating the no-contact order by allegedly
sending notes to her girlfriend. As a result, the court ordered that she be detained and appointed a public defender. Although Mary Beth had a right to challenge the detention, her
defender waived the detention hearing without consulting her. At a subsequent hearing in
the case, the prosecutor argued that Mary Beth was suicidal and should be placed in foster
Mary Beth’s court-appointed defender did not object, stating that it was fair to keep her in
a facility if she was suicidal. The defender told Mary Beth and her mother that she believed
the no-contact order was reasonable and tried to convince her to plead guilty to violating
probation. Ultimately, Mary Beth pled to the charges and went home, although she was
assigned to an alternative school and ordered to attend counseling. The attorney’s refusal
even though she may have believed she was doing what was “for the best.”
Similarly, defenders who believe that LGBT identity is an indicator of pathology or dangerousness have failed to contest their clients’ detention or incarceration. A defense attorney
who represented a boy who was in a relationship with another boy referred to his own client
as a “sexual predator” and a “perpetrator” when talking with other colleagues involved in
the case. Even though his client was anxiously awaiting release from secure care, the defense attorney mistakenly assumed his client wanted to remain incarcerated. In court, the
attorney said his client was a “homosexual” who did not want to be released to his mother
because he feared she would try to “turn him” (or change his sexual orientation) if he rehis defense attorney that he wanted to remain incarcerated; in fact, he had been working
25
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9
Defenders have a duty to represent clients at detention hearings, which includes discussing options with the client, exploring the least restrictive release options, and alerting the
court of appropriate alternatives to detention.26 Acknowledging the importance of counsel
at this stage of a case, the NCJFCJ Juvenile Delinquency Guidelines call for counsel to be appointed prior to the detention hearing and with enough time for the defender to prepare
for the hearing.27 In some jurisdictions, though, youth appear unrepresented at detention
hearings because the court does not appoint counsel until after the detention decision28 or
the youth waive their right to counsel. Late appointments of counsel also mean that attorneys often meet their clients only moments before the detention hearing, making it virtually impossible to prepare an effective, well-informed defense or to provide the court with
a suitable alternative to detention. When a defense attorney is not prepared to advocate
for alternatives to secure detention, judges may simply rely on the recommendations of
tive advocacy at the detention hearing contributes to high rates of detention for all youth.29
In addition to these general problems that can affect any youth, LGBT youth may not receive effective advocacy at detention hearings because their attorneys do not know what
questions to ask their clients, fail to build the trust needed to obtain relevant information,
and are not familiar with detention alternatives that are appropriate for LGBT youth.30 In
addition, many attorneys are not aware of the heightened risk of abuse that many LGBT
youth face in detention and how to present this information to the court.
Practice Tips for Defenders: Providing LGBT Youth with
Zealous Advocacy at Initial Detention Hearings
At detention hearings, defense attorneys play a crucial role in representing their clients’
at this critical stage of a delinquency case. In general:
Be familiar with risk-screening instruments and their potentially disparate impact on
LGBT youth.
Keep informed of alternatives to detention for LGBT youth and present these alternatives to the court at detention hearings.
Stay abreast of current research on the harmful effects of detention for all youth,
including LGBT youth.
Keep informed about the conditions in the facilities in your jurisdiction, particularly
as to whether facilities have policies of nondiscrimination based on sexual orientation and gender identity, treat all youth fairly, and engage in practices that ensure the
safety of all youth.
123
The lack of detention advocacy exposes LGBT youth to unnecessary and
dangerous pre-trial detention.
When interviewing youth prior to detention hearings:
Remember you will not necessarily know that a youth is LGBT. Talk to youth without
his or her parents present in a setting that provides the greatest amount of privacy
Find out if your client is afraid for her or his safety if detained and why.
If your client was detained after arrest, ask if he or she was harassed or mistreated
while in detention and investigate the circumstances.
Ask about attendance and performance at school and obtain school records. If the
youth is not attending school, ask why.
Ask about the youth’s home life. If the youth does not get along with her or his family,
ask why.
HIDDEN INJUSTICE
If your client tells you that he or she is LGBT, respond in a way that indicates that you
will fully advocate for him or her. Ask your client who else knows his or her sexual
orientation or gender identity and tell your client you will not reveal this information in
court or elsewhere without his or her permission.
If your client is transgender, ask what name and pronoun the youth uses and if
the youth requests, ask the judge to use the youth’s preferred name and pronoun.
Discuss with the youth the advantages and disadvantages of wearing gender-nonconforming clothing during court hearings or while in placement in order to assist the
youth in making an informed decision. Ask the youth about any hormones or other
transition-related medications he or she is currently taking and ensure the youth
receives them if detained or in any other placement.
If the youth’s family is not accepting of her or his sexual orientation or gender identity
and returning home is not an option, explore alternatives, such as at the home of a
relative or mentor or other appropriate placement. Investigate possible options before
the hearing.
Inform the youth of his or her rights in detention and explain that he or she should
contact you if he or she has problems.
During the hearing:
If you have your client’s consent, educate the judge, if appropriate, about the high risk
of abuse for LGBT youth in detention facilities and explain that transgender youth are
particularly vulnerable to abuse.
If your client does not want his or her parents or others to hear in court that he or she
is LGBT but you think it is important for the judge to know, ask the judge to have a
discussion in chambers.
Challenge the application of the risk criteria used to make detention decisions if they
have a disparate impact on LGBT youth.
Argue for the least restrictive placement possible.
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9
The lack of disposition advocacy exposes LGBT youth to inappropriate
and harmful programs and services.
Unfortunately, many youth do not receive effective dispositional advocacy. Often defense
attorneys do not have enough time to get to know their clients well enough to assess their
needs or locate appropriate services for them. Because of heavy caseloads and a lack of
resources, defenders may not be aware of new services and alternatives to incarceration
in their jurisdiction or have time to prepare adequate dispositional plans to present to the
court. In addition, defenders may lack access to experts to conduct independent evaluations of their clients to determine treatment needs and challenge recommendations for incarceration.34 When defense attorneys do not provide judges with alternative dispositions,
youth are in danger of unnecessary incarceration in facilities that are not safe, do not meet
their needs, are highly restrictive, and are far from home.35
In addition to these general problems, LGBT
youth may not receive
effective advocacy at
disposition hearings because their attorneys do
not know how to communicate with them, are
uncomfortable reaching
out to local LGBT services, or are not aware of
any programs or services
in their jurisdiction that
can competently work
with LGBT youth. For
further discussion of lack
of services, see Chapter 6.
125
The purpose of disposition hearings is to develop the least restrictive treatment and rehabilitation plans for adjudicated youth that meet their educational, emotional, and physical needs and protect the community.31 To be effective, disposition interventions must be
developmentally and culturally appropriate and tailored to individual youth’s needs.32
Similar to their responsibilities at detention hearings, defenders have a duty to advocate
for the most appropriate dispositions consistent with their clients’ expressed interests and
unique needs.33
Practice Tips for Defenders: Providing LGBT Youth with
Zealous Advocacy at Disposition Hearings
Defense attorneys have an obligation to actively seek out and advocate for alternatives
including LGBT youth. To meet this obligation, juvenile defenders should:
Be familiar with community-based programs and resources that provide competent
and nondiscriminatory services to LGBT youth.
Develop relationships with their LGBT clients built on trust and mutual respect.
Explain all possible disposition options to their LGBT clients after adjudication and
solicit input from the youth about the services with which the youth feels most comfortable.
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Request additional evaluations or expert witnesses if necessary to prepare for the
disposition hearing.
During disposition hearings, defenders should:
Inform the court of their clients’ individual needs and expressed interests regarding
treatment and placement alternatives.
Zealously advocate against any placements that are not sensitive to LGBT youth or
cannot keep LGBT youth safe.
Present expert testimony and reports to challenge any recommendations for incarceration or other harmful treatment services that are not consistent with professionally
accepted medical and mental health practices for LGBT youth.
Recommend services and placements outside of the jurisdiction if there are no
appropriate services available locally and if consistent with their client’s expressed
interests.
The lack of post-disposition representation in many jurisdictions leaves LGBT
youth vulnerable to institutional harassment and abuse.
During the post-dispositional stage, access to counsel is critical for ensuring the state’s
compliance with orders to provide services, advocating for additional and more approprithat youth should be represented at this critical stage of a delinquency proceeding.36 For
LGBT youth who are in out-of-home placements, access to counsel after disposition is
(see Chapter 8).
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9
Case Study: Effective Post-disposition Representation
sexual, and mental abuse, threats, and verbal harassment because of his sexual orientation. He was forced to perform oral sex on another resident. Whenever Antoine refused
to comply with sexual demands made by other residents, the other residents physically
attacked him. On one occasion when Antoine defended himself, facility staff responded by
to close and will leave him permanently scarred. After this attack, staff placed Antoine in
because CYA had failed to provide Antoine with the treatment the court had ordered, and
cluded from education and other activities for up to 23 hours a day for several months,
he had not received an adequate education. When the motion was denied because of
jurisdictional issues, his attorney appealed, ultimately securing Antoine’s placement at a
transitional living facility designed to meet the needs of homeless LGBT youth.37
Case Study: Systemic Impact of Post-disposition Defence Advocacy
The history of the federal lawsuit R.G. v. Koller, discussed in Chapters 5 and 8, illustrates
the powerful impact that one defense attorney can have on an entire system. In 2005, a
youth who was perceived to be gay told his defender that he was experiencing constant
verbal, physical, and sexual abuse in the Hawai‘i Youth Correctional Facility (HYCF). The
writ of habeas corpus seeking his removal from the facility. She argued that the facility was
violating his constitutional right to safety because other residents were regularly exposing
themselves to him, pressuring him for sex, and physically abusing him. Although the judge
ultimately dismissed the petition without prejudice for procedural reasons, she expressed
particular concern about HYCF’s failure to protect the youth and warned the facility that if
the allegations in the petition were true, the facility was violating the youth’s rights. Noting
the apparent systemic nature of the problem, the judge advised the facility to adopt policies
and procedures to ensure the fair and appropriate treatment of LGBT youth in its care.38
The defender’s advocacy in this delinquency case laid the ground work for the groundbreaking civil rights case, and her client became one of the plaintiffs in R.G. v. Koller.
127
Antoine was 17-years-old when he was adjudicated for second-degree robbery and committed to the California Youth Authority (CYA). Even though he was never accused of or charged
with a sex offense, CYA automatically placed him in a sex offender unit solely because he
While these case studies highlight examples of effective practice in many jurisdictions,
youth receive no post-disposition representation at all—either because the attorney’s
appointment ends at disposition or because the attorney does not have the time and resources to represent youth effectively at that stage.39
icy that defenders cannot “re-open” a case after adjudication, although many state laws
are clear that youth should be represented throughout the course of their disposition. As
youth advocate and Equity Project Advisory Committee member Wesley Ware explained,
“[P]ost-disposition is a critical stage during which youth should be represented, but the
state still does not provide the resources to make this a reality. If youth call their public
defenders when they have problems within the facilities, they are often told that their cases
are closed or that they should sue the facilities on their own.”40
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Case Study: The Harms of Ineffective Post-disposition
Representation
The case of Destiny, a 16-year-old African-American transgender girl, demonstrates the
grave consequences of inadequate post-disposition representation. Destiny’s involvement
with the juvenile court system began at age 12 and over the course of the next four years,
she repeatedly re-entered the system for shoplifting women’s clothing and jewelry and
or sexual offenses, the court ordered that she be housed in the state’s highest-security
juvenile facility for boys because no other placement would accept a transgender girl. During the year she was incarcerated, Destiny was regularly sexually assaulted and physically
threatened by other youth, harassed by staff, and punished for her gender expression.
Destiny’s court-appointed attorney never advocated for programs to meet her needs, never
Despite his refusal to advocate on her behalf, the court denied Destiny’s requests for a
new attorney.
The National Center for Lesbian Rights (NCLR) subsequently agreed to represent Destiny.
When NCLR submitted a report with local co-counsel about the sexual assaults perpetrated
against Destiny, her court-appointed attorney remarkably suggested to the judge that Destiny was exaggerating. He told the judge, “I think this young man has a lot of things—and
I use the word man—to think about so I would just ask the court to be cautious in any
decision that it makes.”41 Not only had the court-appointed attorney demonstrated a complete disrespect for Destiny’s gender identity and failed to act when he became aware of
Destiny’s abuse, he argued in favor of continued commitment in the facility where she was
clearly unsafe. As a result, the court continued Destiny’s commitment at the facility until
she completed the program.
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9
Spotlight on Reform: Protecting the Rights of LGBT Youth
After Disposition
To these ends, the project has provided individual legal advocacy; training and education
42
Lack of understanding about LGBT issues and lack of resources can
undermine a defender’s ability to build effective attorney-client relationships.
“My attorney didn’t know that I didn’t get along with my mom, and her mistake was she
tried to put me back at home, and I refused. I thought she wouldn’t understand why
I was having a problem with my mother, so I didn’t tell her.” 43
–Janelle, a 17-year-old Latina-white, male-to-female transgender youth
A meaningful trusting attorney-client relationship is the fundamental underpinning of effective advocacy. When defenders are unprepared to work with LGBT youth, the attorney-client relationship suffers. As the project’s focus groups revealed, youth often sense
the discomfort that their defenders feel in dealing with LGBT issues. One lesbian youth,
Shavonne, explained, “Even my [defense attorney] would look at me funny. He wouldn’t
say anything but he’d look at me like, ‘That’s a girl?’ He probably thought I didn’t notice
but I did.”44 Other youth also felt that their defenders did not understand them or were
apathetic to their concerns. As Kyle explained, “Defenders are ignorant. Because you are
LGBT, they don’t work as hard because they don’t know what to do. They don’t try to
defend you as much.”45
from a lack of training. As one defender remarked, “We have training on talking with
clients. [J]ust having a little question list that would have some kind of appropriate questions to bring up [would help] because I don’t really know where to begin.”46 There has
been some progress toward recognizing the importance of training on these issues. In
129
launched in 2006 the LGBTQ and HIV/AIDS Project focused on protecting the rights of
incarcerated LGBTQ youth and youth living with HIV/AIDS in secure care facilities in Louisiana. The objectives of the project are to ensure that LGBTQ youth in the juvenile justice
system receive quality representation in delinquency proceedings, reform the secure care
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particular, the “Ten Core Principles for Providing Quality Delinquency Representation
through Public Defense Delivery Systems,” developed by American Council of Chief
Defenders and National Juvenile Defender Center, recognizes that the special issues presented by lesbian, gay, bisexual, and transgender youth require increased awareness and
training to ensure that advocacy on their behalf addresses their needs. And the state
of Virginia in 2007 adopted “Standards for Juvenile Defense Counsel,” which require that counsel
“be knowledgeable about and seek
ongoing training in . . . the issues
of lesbian, gay, bisexual, and transgender youth in the juvenile justice
system.”47 However, a general lack
of defender training, as well as a
lack of training on representing
LGBT youth in particular, remains
Other impediments to building
trusting relationships for even wellmeaning defense attorneys relate to
the general lack of time and resources to devote to each individual case.
Since attorneys are often appointed
late in the process, they regularly
must conduct initial client meetings
at the courthouse only minutes before the detention hearing and often in the hallway with no privacy.
Defender Kim Forte lamented the
lack of private interview space for
defenders at the courthouse in her
jurisdiction, explaining that, “LGBT
youth may not feel comfortable
talking with their attorneys about
their experiences of discrimination and about their identity in this
space, so the defense attorney will
not have all of the facts that he or
she might need.”48
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9
Practice Tips for Defenders: Talking with Youth about
Sexual Orientation or Gender Identity49
Explain to the youth in language that she or he can understand the attorney’s duties
of loyalty and communication, including the responsibility to consult with clients
regarding their legal options.
Spend enough time with clients to develop a trusting relationship. Follow through on
commitments to them.
Explain that defenders need to know as much as possible about them to be able to
advocate for their interests and convey a nonjudgmental attitude. Ask open-ended
questions.
Do not make assumptions about a youth’s sexual orientation or gender identity.
Avoid language that assumes anything about a youth’s sexual orientation or gender identity. For example, rather than asking a youth “Do you have a boyfriend?”
ask “Do you have a boyfriend or girlfriend?” or “Are you dating or in a relationship
with anyone?”
If a youth raises issues related to sexual orientation or gender identity, remain open
and supportive.
Ask youth what name they would like to be called and what pronoun they prefer.
Remember that the youth is the gatekeeper of this information. Always ask her or his
permission before revealing this information to others.50
131
While many young people are openly LGBT in some areas of their lives, it is not likely that
LGBT youth involved in the juvenile court will immediately offer this information to everyone. Although defenders may think that a youth is LGBT, they should not make assumptions
based on how a youth looks or acts. Rather, defenders should take the following steps to
ensure sensitive advocacy:
Practice Tips for Defenders:
Responding to LGBT Bias in the Courtroom51
All juvenile justice professionals have a role to play in ensuring that LGBT youth do not face
take the following steps when advocating for their LGBT clients:
Immediately respond to jokes or other disrespectful comments about your client’s
actual or perceived sexual orientation or gender identity. Note your objection for the
record.
Challenge disproportionate and punitive juvenile court responses to consensual
sexual conduct, particularly when based on gender, sexual orientation, and race.
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Advocate for youths’ right to express their sexual orientation and gender identity in
court, including requesting that court professionals address clients with their preferred names and pronouns, if so directed by client.
Oppose assumptions made about the sexual activity of clients based on gender,
sexual orientation, or race.
Oppose introduction of evidence of sexual orientation or sexual conduct when not
relevant or when used to punish or embarrass youth.
Challenge assumptions that youth should be placed in secure facilities “for their
protection.”
Cite research, expert testimony, and accepted professional standards that support
fair treatment of LGBT youth.
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9
Endnotes
See Mary Berkheiser, The Fiction of Juvenile Right to Counsel: Waiver in the Juvenile
Courts, 54 Fla. L. Rev. 577, 634-35 (2002) (quoting the National Report of President
Johnson’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 86-87 (1967)).
2. Equity Project focus group, Russell, a 21-year-old white, bisexual male youth (Apr.
17, 2008).
3. In re Gault, 387 U.S. 1 (1967).
4. See Lee Teitelbaum, Institute of Judicial Administration-American Bar Association
Joint Commission on Juvenile Justice Standards, Juvenile Justice Standards Relating
to Counsel for Private Parties 69 (1996) [hereinafter Juvenile Justice Standards Relating
to Counsel]; see also Fare v. Michael C., 442 U.S. 707, 719 (1979) (“the lawyer is the one
person to whom society as a whole looks as the protector of the legal rights of that
person”).
5. See Berkheiser, supra note 1, at 86-87.
6. All assessments by the National Juvenile Defender Center can be found at www.
njdc.info.
7. See American Bar Association Juvenile Justice Center, Youth Law Center, and
Juvenile Law Center, A Call for Justice: An Assessment of Access to Counsel and Quality
of Representation in Delinquency Proceedings 45, 52 (1995) [hereinafter A Call for Justice].
8. See Elizabeth Calvin, et al., Advocacy and Training Guide: Juvenile Defender Delinquency
Notebook 3 (2006).
9. See Marsha Levick & Neha Desai, Still Waiting: The Elusive Quest to Ensure Juveniles a
Constitutional Right to Counsel at All Stages of the Juvenile Court Process, 60 Rutgers L.
Rev 175 (2007).
10. See generally Calvin et al., supra note 8.
11. American Bar Association Model Rules of Professional Conduct: Preamble (zealous
12.
13.
14.
15.
(2002) (requiring attorneys maintain a normal attorney-client relationship with
young clients “as far as reasonably possible”).
See Juvenile Justice Standards Relating to Counsel, supra note 4, at 75-76; National Council of Juvenile and Family Court Judges, Juvenile Delinquency Guidelines: Improving
Court Practice in Juvenile Delinquency Cases 30 (2005) [hereinafter Juvenile Delinquency
Guidelines]; National Juvenile Defender Center & National Legal Aid and Defender
Association, Ten Core Principles for Providing Quality Delinquency Representation
Through Public Defense Delivery Systems at principle 1 (2008) [hereinafter Ten Core
Principles]. For more in-depth discussion of the ethical duties of juvenile defenders,
see Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the
Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 81, 245, 256 (2005);
Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64
Fordham L. Rev. 1399, 1412, 1424 (1996); Martin Guggenheim, Recommendations of the
Conference on Ethical Issues in the Legal Representation of Children, 64 Fordham L. Rev.
1301, 1312 (1996).
See Barbara Fedders, Coming Out For Kids: Recognizing, Respecting, and Representing
LGBT Youth, 6 Nev. L. J. 774, 775 (2006).
Equity Project interview with a juvenile defender (June 28, 2007).
Report of the Working Group on the Role of Sex and Sexuality, 6 Nev. L. J. 642, 644
(2006) [hereinafter Report of Sex and Sexuality Working Group].
133
1.
HIDDEN INJUSTICE
authors).
18. Equity Project focus group, Adam, a 14-year-old African-American, gay male youth
(May 5, 2008).
19. See Fedders, supra note 13, at 799-803.
20. See id.
21. Id., at 801.
22. Equity Project focus group, Janelle, a 17-year-old Latina-white, male-to-female transgender youth (May 1, 2008).
23. Id.
25. Equity Project interview with youth advocate Wesley Ware (Jan. 17, 2008).
26. Daniel J. Freed & Timothy P. Terrell, Institute of Judicial Administration-American
Bar Association Joint Commission on Juvenile Justice Standards, Juvenile Justice
Standards Relating to Interim Status: The Release, Control, and Detention of Accused
Juvenile Offenders Between Arrest and Disposition, 139 (1996) [hereinafter Juvenile Justice
Interim Status Standards].
27. Juvenile Delinquency Guidelines, supra note 12, at 30.
28. See National Juvenile Defender Center, Virginia: An Assessment of Access to Counsel
and Quality of Representation in Delinquency Proceedings 2 (2002) (Noting that under
Virginia law, counsel need not be appointed until after the initial advisement
hearing, which, for detained youth, is combined with the detention hearing. After
the appointment, counsel may request a reconsideration of the detention decision
through a detention review hearing; however such hearings are rarely conducted.
see also National
Juvenile Defender Center, Legal Strategies to Reduce the Unnecessary Detention of
Children (2004) [hereinafter NJDC Legal Strategies].
29. See NJDC Legal Strategies, supra note 28, at 3-38 (describing effective methods of
advocacy for defenders to reduce juvenile detention rates).
30. See generally Fedders, supra note 13.
31. Josephine Gittler, Institute of Judicial Administration-American Bar Association Joint
Commission on Juvenile Justice Standards, Juvenile Justice Standards Relating to the Juvenile Probation Function: Intake and Predisposition Investigative Services, 169-70 (1996);
Calvin et al., supra note 8, at 228-29; A Call for Justice, supra note 7, at 36.
32. Juvenile Delinquency Guidelines, supra note 12, at 135.
33. Id. at 137; Ten Core Principles, supra note 12, at principle 8.
34. A Call for Justice, supra note 7, at 52.
35. Calvin et al., supra note 8, at 148-49.
36. See Juvenile Delinquency Guidelines, supra note 12, at 25; Juvenile Justice Interim Status Standards, supra note 26, at 140; National Association of Counsel for Children,
NACC Policy Agenda: Juvenile Justice Policy (1997), http://www.naccchildlaw.
org/?page=Policy_Agenda; Ten Core Principles, supra note 12, at principle 1.
37. In re Antoine D., 137 Cal.App.4th 1314, 1319-1320 (Cal. App. 1st Dist. 2006) (further
38. Unpublished order dismissing writ of habeas corpus without prejudice, Family
Court of the First Judicial Circuit, Hawai‘i, Judge Wong, Mar. 17, 2005; see also Rudy
Estrada & Jody Marksamer, Lesbian, Gay, Bisexual, and Transgendered Young People in
134
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
State Custody: Making the Child Welfare and Juvenile Justice Systems Safe For All Youth
Through Litigation, Advocacy, and Education, 79 Temp. L. Rev. 415, 427 n. 49 (2006).
See A Call For Justice, supra note 7, at 26.
Equity Project interview with Wesley Ware (Jan. 17, 2008).
Jody Marksamer, And by the Way, Do You Know He Thinks He’s a Girl? The Failures
of Law, Policy, and Legal Representation for Transgender Youth in Juvenile Delinquency
Courts, 5 Sexuality Research & Social Policy 72, 77 (2008).
For more information on the upcoming report from the Juvenile Justice Project of
Louisiana’s LGBTQ Project, visit http://jjpl.org/new/.
Equity Project focus group, Janelle, a 17-year-old Latina-white, male-to-female
Equity Project focus group, Shavonne, a 21-year-old African-American-multiracial
lesbian female youth (Apr. 11, 2008).
Equity Project focus group, Kyle, a 17-year-old white bisexual female-to-male
Commonwealth of Virginia, Practice Standards of Practice for Indigent Defense In NonCapital Criminal Cases at the Trial Level 38, 2.2 (z).
Equity Project interview with Kim Forte (Dec. 3, 2007).
See Jody Marksamer & Shannan Wilber, The Model Standards Project: Defending
LGBTQ Youth, http://www.nclrights.org/site/DocServer/msp_attyguideyouth0105.
pdf?docID=1562. See also Marynella Woods, 10 Tips: Working with LGBTQ
(Lesbian, Gay, Bisexual, Transgender, and Questioning) Youth, available at
http://www.equityproject.org/pdfs/top_10_tips.pdf.
train their staff on LGBT-related issues. It is important to understand, however, that
many youth are not comfortable coming out to others with whom they have not yet
developed a trusting relationship.
51. Report of Sex and Sexuality Working Group, supra note 15, at 644.
135
9
Chapter 10
10
Despite the outstanding work of many dedicated juvenile justice system professionals who
have tirelessly advocated on behalf of LGBT youth, many LGBT youth across the country continue to face bias, harassment, and unfair treatment throughout the course of their
delinquency cases. In addition, many well-meaning juvenile justice professionals lack an
understanding of the unique challenges confronting LGBT youth, which limits their ability
and equity for LGBT youth in the nation’s juvenile courts. By implementing practice and
policy reforms, individuals and jurisdictions can protect the due process rights of LGBT
youth in juvenile courts, divert as many youth as possible out of the juvenile justice system,
and meet the individualized treatment and rehabilitative needs of adjudicated youth. The
recommendations set forth in this chapter are intended to guarantee due process protections and improve outcomes for all court-involved youth generally, and for LGBT youth,
in particular.
Core Recommendations
The following core recommendations are designed to enhance the capacity of juvenile justice professionals to work effectively with LGBT youth. To help ensure the rights of LGBT
youth and meet their rehabilitative needs in delinquency and status offense cases, the Equity Project recommends the following:
1.
Juvenile justice professionals (including judges, defense attorneys, prosecutors, probawith fairness, dignity, and respect, including prohibiting any attempts to ridicule or
change a youth’s sexual orientation or gender identity.
2.
Juvenile justice professionals must promote the well-being of transgender youth by
allowing them to express their gender identity through choice of clothing, name, hairstyle, and other means of expression and by ensuring that they have access to appropriate medical care if necessary.
3.
Juvenile justice professionals must receive training and resources regarding the unique
societal, familial, and developmental challenges confronting LGBT youth and the relevance of these issues to court proceedings. Trainings must be designed to address the
4.
Juvenile justice professionals must develop individualized, developmentally approcircumstances of his or her life.
velop, adopt, and enforce policies that explicitly prohibit discrimination and mistreat-
137
Recommendations for Guaranteeing Due Process and Improving Outcomes for Court-Involved Youth
Recommendations for Guaranteeing Due Process and
Improving Outcomes for Court-Involved Youth
ment of youth on the basis of actual or perceived sexual orientation and gender identity at all stages of the juvenile justice process, from initial arrest through case closure.
6.
Juvenile courts must commit to using the least restrictive alternative necessary when
intervening in the lives of youth and their families and avoid unnecessary detention
and incarceration.
7.
Juvenile courts must collaborate with other system partners and decision makers to
develop and maintain a continuum of programs, services, and placements competent
to serve LGBT youth, ranging from prevention programs to alternatives to detention
to nonsecure and secure out-of-home placements and facilities. Programs should be
gender identity of their LGBT child.
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8.
Juvenile justice professionals and related stakeholders must ensure adequate development, oversight and monitoring of programs, services, and placements competent to
serve LGBT youth.
counsel to provide zealous defense advocacy at all stages of delinquency proceedings.
10. Juvenile justice professionals must take responsibility for protecting the civil rights,
and ensuring the physical and emotional well-being and safety, of LGBT youth placed
in out-of-home placements.
tions afforded LGBT youth. These protections must prohibit disclosure of information
about a youth’s sexual orientation and gender identity to third parties, including the
Strategies for Reform
Each stakeholder within the juvenile justice system has responsibility for implementing
practice and policy reforms to ensure that all youth, including LGBT youth, are treated
with dignity, fairness, and respect. Depending on the particular role of the professionals
low are directed toward particular categories of professionals within the juvenile justice
Juvenile Courts, Judges and Bench Officers
Support the creation of a continuum of community-based,
LGBT-competent resources
U Ensure that all court-based services such as mental health programs, drug or alcohol
abuse services, and status offender programs, provide effective and nondiscriminatory services to LGBT youth.
U Keep informed of community-based programs and resources (including diversion
programs, out-of-home placements, and aftercare services) that are equipped to
138
work with LGBT youth and provide effective nondiscriminatory services. Ensure
that defense attorneys, prosecutors, and probation officers are familiar with these
resources as well.
U Require mental health professionals with whom the court contracts to obtain training in competently providing services to LGBT youth.
Insist on decorum and respect in the courtroom
U Ensure that all professionals, regardless of their personal views, treat LGBT youth
with dignity and respect in court. Immediately respond to instances of discrimination, including comments made in court that belittle, ridicule, or otherwise demonstrate bias towards LGBT youth.
U Where applicable, indicate on court documents a transgender youth’s preferred
name along with the legal name.
Adhere to constitutional and statutory due process provisions
U Ensure the timely appointment of well-resourced, qualified counsel to represent
LGBT youth at all stages of delinquency cases.
U Conduct all judicial colloquies using developmentally appropriate language and insist that any waivers of rights by youth meet the knowing, voluntary, and intelligent
standard.
Reduce the over-reliance on detention and incarceration
U Make detention decisions based on appropriate legal standards (i.e., risk of dangerousness or flight). In cases in which these standards are not met but returning home
is not an option, explore viable alternatives to detention.
U Support the creation of alternatives to detention that will keep LGBT youth in their
communities with the lowest level of supervision necessary, such as informal daily
reporting centers, curfews, placement in foster homes, or counseling.
U Where applicable, participate with other stakeholders on committees that develop
or adopt screening tools used to make detention decisions. Any such tools must be
based on objective, evidence-based factors and should not have a disparate impact
on LGBT youth.
Juvenile Defense Attorneys
Provide client-centered defense advocacy throughout the duration of each case
U Zealously represent the child’s expressed legal interests, after counseling the client to
understand the benefits and drawbacks that could accompany any particular course
of action. This includes respecting the clients’ decisions about whether, how, and to
whom they choose to disclose their sexual orientation and gender identity.
U Provide comprehensive representation throughout the duration of the case, including but not limited to representation at the initial and detention hearings, pre-adjudi-
139
10
catory motions hearings, adjudication, disposition, and post-disposition. To provide
effective representation, defenders must carry reasonable caseloads, and have access
to support staff, investigators, experts, and social workers to assist with case investigation and preparation. Moreover, the court must appoint counsel at the earliest
stage of cases, and representation must continue through the post-disposition phase.
U Maintain up-to-date lists of LGBT-competent services in the jurisdiction, as well as
programs or placements that have been unsupportive of LGBT youth. Share this
information with courts, probation officers, and prosecutors. Advocate for those
services and placements that are LGBT-competent and against those which are not.
Develop meaningful lawyer-client relationships
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U Establish a meaningful, trusting relationship with clients and assure the youth of
the confidential nature of the attorney-client relationship. Successful attorney-client
relationships can only be built if defenders spend—and are afforded—sufficient time
with clients.
U Be aware of personal biases regarding race, ethnicity, class, immigration status,
sexual orientation, and gender identity. Defenders should not allow these biases to
negatively influence the representation of clients.
Juvenile Prosecutors
Ensure fair prosecution
U In addition to training on LGBT issues for all staff in the prosecutor’s office, such as
investigators, paralegals, social workers, disposition specialists, police liaisons, and
anyone who may interview complainants, all staff should receive training on how
to identify hate-based offenses against LGBT youth, including those perpetrated by
family members.
U Consider the risk factors associated with adolescent LGBT identities when deciding whether to divert, dismiss, or petition a case, assessing culpability, and making
disposition recommendations.
U Develop LGBT-competent diversion programs and resolve cases outside the formal
court process to the extent possible.
Juvenile Probation Agencies and Officers
Ensure fair case processing
U Consider sexual orientation and gender identity when making disposition recommendations to ensure that youth are not placed in programs that are damaging to
them, and instead are placed in programs and provided services that appropriately
address their individual concerns.
U Explore possible alternatives to detention and incarceration and recommend the
least restrictive disposition necessary in each case.
140
U For youth alleged to have violated probation conditions, thoroughly explore the
reasons for the behavior and consider whether harassment or abuse associated with
sexual orientation or gender identity have contributed to the behaviors before asking
the court to revoke probation.
Ensure services and programs provided to youth are LGBT-competent
U Support the creation of a continuum of community-based, LGBT-competent programs, including diversion programs.
U Require that all contracts with community-based providers and other governmental
agencies specifically include LGBT-competent services and prohibit discrimination
against LGBT youth.
U Address family conflicts by providing services to families struggling to accept the
sexual orientation or gender identity of youth. Secure funding for community-based,
LGBT-sensitive conflict resolution programs and counseling services to resolve family conflicts.
Detention and Other Secure Facilities
Ensure that youth are safe and treated with respect
U Prohibit, and swiftly respond to, the verbal, physical, and sexual abuse of LGBT
youth by staff and other youth. Create a culture of respect for all youth within the
facility. (See also “Practice Tips: Preventing Harassment in Secure Facilities” in
Chapter 8.)
U Provide a written explanation of the facility’s nondiscrimination policies (once adopted) to youth when they enter the facility.
U Gather data on the number of LGBT youth in detention and their experiences to
assess youth needs through anonymous surveys or other measures that will protect
privacy and confidentiality.
U Provide LGBT-competent programming and services within facilities. Do not attempt to change a youth’s sexual orientation or gender identity, punish youth for
expressing sexual orientation or gender, or require youth to undergo sex offender
counseling based solely on the youth’s sexual orientation or gender identity.
Make appropriate and individualized housing decisions
U Develop policies and protocols regarding the appropriate housing and classification
of LGBT youth in facilities. Develop and implement evidence-based intake processes
to identify youth who are vulnerable to physical and sexual assault for purposes of
classification. Utilize LGBT-competent health and mental health screening tools.
U Insist on individualized classification and housing decisions. Prohibit blanket policies regarding the housing of LGBT youth, or those perceived to be LGBT, including
policies that allow for the automatic housing of transgender youth according to their
birth sex. Prohibit placement of LGBT youth, based solely on their sexual orientation
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10
or gender identity, in sex-offender units or with violent or sexually aggressive youth.
U Develop responses to abuse or harassment (or threat of abuse or harassment) of
LGBT youth that do not rely on the isolation or segregation of LGBT youth. Place
vulnerable youth in the least restrictive environment necessary to ensure safety and
provide the youth with equal access to facility services.
Provide adequate oversight and advocacy
U Remove any barriers that impede access to counsel for youth in the facility.
U Develop grievance procedures regarding complaints related to discrimination,
harassment, and physical or sexual abuse. Investigate and provide meaningful
follow-up on all complaints. Track complaints in a manner that identifies the sexual
orientation and gender identity of the alleged victim and abuser while ensuring
confidentiality of this information.
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Provide appropriate medical care
U Provide all youth with access to quality medical care. Ensure access to medical
personnel who are knowledgeable about the particular health needs of transgender
youth. Continue to provide all transition-related medical treatments that transgender youth started prior to entering the facility. Provide any necessary authorization
for the initiation of transition-related treatments when they are medically necessary
according to accepted professional standards.
U Engage health and mental health professionals in monitoring the well-being of
LGBT youth, advocating on their behalf, and taking steps to ensure their safety in
facilities. Medical staff should ask all youth about safety, both in the facility and the
youth’s homes. Medical staff should routinely ask about sexual activity, sexual orientation, and gender identity of all youth.
U Provide counseling services that address self-acceptance and validation, concerns
about disclosure of sexual orientation or gender identity, family relationships,
healthy intimate relationships, and sexual decision making.
Bar Associations
U Pass resolutions supporting legislative and policy changes that will improve the
system’s response to LGBT youth (such as the adoption of nondiscrimination policies by justice system agencies, enactment of legislation that rolls back punitive responses to minor misbehavior, and the creation of a continuum of care for all youth,
including LGBT youth).
U Host continuing legal education events, and develop subcommittees to address issues related to LGBT youth in the juvenile justice system.
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LGBT Advocates and Juvenile
Justice Advocates
U Ensure that local juvenile justice systems
implement the recommendations provided
in this report. Pursue litigation and policy
advocacy when necessary to ensure the fair
and respectful treatment of LGBT youth in
the juvenile justice system.
U Advocate for the enactment of legislation that would address the criminalization
of adolescent sexual behavior. This includes advancing policies that (1) respond to
juveniles engaged in prostitution with social services rather than criminal sanctions;
(2) address out-dated age of consent laws that expose adolescents to sanctions for
engaging in consensual sexual behavior with other adolescents; and (3) exempt juveniles from harmful sex offender registration and community notification laws.
U Educate law enforcement personnel about the particular issues facing LGBT youth
to ensure respectful treatment and prevent police profiling of LGBT youth as prostitutes and unnecessary arrests.
U Encourage professional organizations, such as the American Academy of Pediatrics,
the National Commission on Correctional Health Care, the National Council of Juvenile and Family Court Judges, and the American Bar Association, to take supportive
positions on LGBT issues.
Policy Makers
U Ensure the passage of nondiscrimination laws that specifically address actual or
perceived sexual orientation and gender identity.
U Establish an independent ombudsperson or similar oversight program for secure
facilities that is not administered by the same agency that oversees the institutions.
U Ensure that a continuum of community-based, LGBT-competent programs is available and properly funded.
U Develop status offender systems that treat at-risk youth outside the court system
and provide them and their families with culturally-competent community-based
services.
U Eliminate zero tolerance laws and require that schools provide interventions to improve student behavior before referring to juvenile court except for the most serious
criminal offenses. Pass legislation giving schools incentives and resources to develop
such interventions.
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10
Appendices
Appendices
Appendix A: Glossary of LGBT and Juvenile Justice Terms
adjudication
tion” for an adult accused of a crime.
-
adjudicatory hearing: A hearing to determine if the facts support the allegation(s) made
against a youth; the equivalent of an adult criminal trial.
ally: An individual who is not lesbian, gay, bisexual, or transgender and is supportive of
the LGBT community.
arrest: The taking of a youth into involuntary custody for questioning or detainment by a
person, with legal authority, usually law enforcement. Also see taken into custody.
birth sex
bisexual: A person who is emotionally, romantically, and sexually attracted to both men
and women.
coming out: The process of disclosing one’s sexual orientation or gender identity to others.
Because most people in our society are presumed to be heterosexual, coming out is typically not a discrete event, but a lifelong process.
protections are typically not comprehensive; most include exemptions that provide for a
youth’s record of delinquency involvement to be made available to schools, youth agencies,
criminal court: A court with jurisdiction over adults being accused of committing criminal
acts. Increasingly, juveniles are being tried in criminal court.
delinquency petition
a youth is alleged to have committed and asking for the youth to be declared “delinquent”
by the juvenile court.
delinquent act: An act that violates a state’s criminal laws committed by a youth who falls
within juvenile court jurisdiction.
detention facility: An institution in which juveniles may be held while delinquency proceedings are underway; the equivalent of a “jail” in the adult correctional system.
detention hearing:
-
145
Appendices
assessment tools: In-depth information gathering and diagnostic instruments used by
trained professionals to determine needs, diagnoses, and strengths.
or at the time the youth was arrested. The purpose of the hearing is to determine, among
other things, whether the youth should be detained during the pendency of his or her case.
disposition: The equivalent of “sentencing” in the adult criminal system.
disposition hearing: The hearing at which the juvenile delinquency court makes orders
regarding the consequences that an adjudicated youth receives as a result of committing
disposition plans. Recommendations might include, for example, probation, drug treatment, restitution, or residential placement.
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diversion: The handling of a case involving a youth through nonjudicial alternative interventions. If the youth successfully completes the diversion requirements, the petition is
gay: A person whose emotional, romantic, and sexual attractions are primarily for individuals of the same sex, typically in reference to men and boys, although in some contexts,
still used as a general term for gay men and lesbians.
gender expression: A person’s expression of his or her gender identity (see below), including characteristics and behaviors such as appearance, dress, mannerisms, speech patterns,
and social interactions.
gender identity: A person’s internal, deeply felt sense of being male or female.
gender identity disorder: A diagnosable medical condition where an individual has a
that one is, of the opposite sex, as well as a persistent discomfort about one’s assigned birth
sex or a sense of inappropriateness in the gender role of that sex. In addition, the individor other important areas of functioning.
gender nonconforming: Having or being perceived to have gender characteristics and/or
behaviors that do not conform to traditional or societal expectations. Gender nonconforming people may or may not identify as LGBT.
gender roles: Social and cultural beliefs about appropriate male or female behavior, which
children usually internalize between ages 3 and 7.
genderqueer
tive and binary terms that have traditionally described gender identity (for instance, male
or female only). Also see gender nonconforming, queer, and transgender.
homophobia: Literally, “fear of homosexuals,” but in recent decades, broadened as a term
for prejudice against LGBT people.
146
homosexual: A term used to refer to a person based on his or her same-sex sexual orientation, identity, or behavior. Many LGBT people prefer not to use this term—especially as a
noun—because of its historically negative use by the medical establishment.
intake: The initial screening and assessment of a juvenile who is alleged to have violated
the law or a court order.
legal guardian: An adult who is not a child’s biological or adoptive parent, but has been given
legal authority by a court to provide care and have custody of a child. In some jurisdictions a
child’s biological or adoptive parent may also be referred to as the child’s legal guardian.
LGBT: Common acronym for Lesbian, Gay, Bisexual, and Transgender—persons that despite their differences are often discriminated against in similar ways. Sometimes written
to include “Q” for Questioning and/or Queer, “I” for Intersex, and/or “A” for Ally. May
also be written as GLBT.
nonsecure detention: An unlocked facility that does not restrict movement into or out of
the facility and is used to detain an alleged or adjudicated delinquent youth until the juvenile delinquency court orders the youth’s release.
post-disposition review: Hearings held after the juvenile delinquency court has ordered
probation, treatment services, or placement, to ensure that the youth, parents, probation service, and placement providers are following through with the court-ordered plan. This review can be through progress reports, progress hearings, or dispute resolution alternatives.
pre-disposition report: A report to the court on the youth’s offense, family history, community involvement, and recommendations for disposition.
probation: The status of a delinquent youth placed on community supervision. Youth are
queer: A historically derogatory term for a gay man, lesbian, or gender-nonconforming
person. The term has been widely reclaimed, especially by younger LGBT people, as a positive social and political identity. It is sometimes used as an inclusive, or umbrella, term for
all LGBT people; more recently, queer
for people who do not identify with the restrictive and binary terms that have traditionally described sexual orientation (for instance, gay, lesbian, or bisexual only). Some LGBT
queer an offensive or problematic term. Also see genderqueer.
questioning: An active process in which a person explores her or his own sexual orientation and/or gender identity and questions the cultural assumptions that she or he is heterosexual and/or gender conforming. Many LGBT people go through this process before
“coming out.” Not all people who question their identities end up self-identifying as LGBT.
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Appendices
lesbian: A woman or girl whose emotional, romantic, and sexual attractions are primarily
for other women or girls.
referral: The process of directing a youth to the court system based on an allegation of a
criminal law violation.
reparative therapy: An intervention designed to “cure” LGBT youth of their sexual orientation. Reparative therapy is opposed by the American Academy of Pediatrics, the American Psychiatric Association, and other major professional associations, because it is harmful and ineffective. Agencies should not permit staff, caregivers, community providers, or
contractors to use these interventions with youth.
secure facility: A locked facility with physical features that restrict the movement of youth
who are either detained pretrial or have already been adjudicated delinquent.
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tion. Increasingly, LGBT youth are self-identifying during preadolescence or early adolescence.
sex offender: Someone who commits a sex-based crime. LGBT youth are sometimes wrongly treated as sex offenders by mere virtue of their sexual orientation or gender identity.
sex roles: See gender roles.
sexual orientation: A term describing a person’s emotional, romantic, and sexual attraction,
for members of the same sex or a different sex. More appropriate than “sexual preference.”
status offense: An offense that would not be a crime if committed by an adult (e.g., truancy, running away from home, being out of control of parents, defying school rules).
taken into custody: The physical control of a youth who is detained by a law enforcement
arrest.
transgender person: A person whose gender identity (his or her understanding of him or herself as male or female) does not correspond with his or her anatomical sex. A transgender
woman is a woman whose birth sex was male but who understands herself to be female. A
transgender man is a man whose birth sex was female but who understands himself to be male.
transition: The time period when a transgender person starts living as the gender she or he
people use the correct pronoun, and possibly hormone therapy and/or surgery.
transsexual: A term for someone who transitions from one physical sex to another, to bring his or
her body more in line with his or her innate sense of his or her gender identity. It includes those
who were born male but whose gender identity is female, and those who were born female but
whose gender identity is male. Transsexual people have the same range of gender identities and
expressions as others. Many transsexual people refer to themselves as transgender.
two-spirit: A term used by some LGBT American Indians to refer to their LGBT identities.
Historically, in some American Indian traditions, “two spirit” people were those gifted
with the privilege of housing both feminine and masculine spirits in one body, making
them inherently sacred people.
148
Appendices
Appendix B: Survey for Defenders
149
150
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151
Appendices
152
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153
Appendices
154
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155
Appendices
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Appendix C: Youth Focus Group Survey
156
Appendices
Appendix D: Redacted Court Order Regarding Transgender Youth
157
158
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Appendix E: Model Non-Discriminatory Services Policy
Model Policy & Practice Guidelines for Providing Non-Discriminatory Services to
Lesbian, Gay, Bisexual, and Transgender (LGBT) Youth in Juvenile Justice Facilities
I. Purpose
In accordance with state and federal laws, each youth under the jurisdiction of [facility]
has the right to live in an environment free of harassment and discrimination. [This facility] is committed to providing a healthy and accepting setting for all youth placed in its
care by training staff, instituting policies, and educating youth to respect each other. [This
facility] does not tolerate discrimination or harassment by employees, volunteers, contract
providers, or youth.
Appendices
The purpose of these Policy and Practice Guidelines is to establish operational practices
that reinforce [this facility’s] commitment to respect the dignity of lesbian, gay, bisexual,
and transgender (LGBT) youth, create a safe environment for all members of the [facility]
community, and ensure that all youth have equal access to all available services, placeII. Policy
v
It shall be the policy of [facility] to maintain and promote a facility that provides
the highest quality of services to youth regardless of their actual or perceived
ner based on principles of sound professional practice.
v
[facility] shall not discriminate against or harass any youth in their care based on a
youth’s actual or perceived sexual orientation or gender identity.
v
[Facility] employees shall protect youth from discrimination, physical and sexual
harassment or assault, and verbal harassment by other youth, based on a youth’s
actual or perceived sexual orientation or gender identity.
v
[Facility] will take all reasonable steps within its control to meet the diverse needs
treated with respect and dignity, regardless of sexual orientation or gender identity.
III. Practice Guidelines for Providing Services to LGBT Youth
A. General Facility Operations
v
All youth, regardless of sexual orientation or gender identity, need to feel safe
cility] shall establish and maintain a culture where the dignity of every youth
is respected and all youth feel safe. Employees shall create opportunities for
dialogue with youth and staff about all forms of diversity to increase tolerance
and respect.
159
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v
[Facility] will promote the positive adolescent development of all youth in its
care. Actions that support positive adolescent development include: modeling desired behavior such as demonstrating respect for all youth; reinforcing
respect for differences amongst youth, encouraging the development of healthy
self-esteem in youth, and helping youth manage the stigma sometimes associated with difference.
v
Employees should model positive behavior when interacting with LGBT youth
and remind all youth that anti-LGBT threats of violence, actual violence, or
disrespectful or suggestive comments or gestures, will not be tolerated.
v
[Facility] intends to provide a safe and non-discriminatory environment where
youth can learn and grow. Employees of [facility] shall not prohibit or discourage communication or interaction between youth of the same sex that is not
also prohibited or discouraged between youth of different sexes. Expressions
of romantic or emotional attraction between youth of the same sex that do not
include sexual activity are not prohibited and shall not result in punishment.
v
materials in [facility] library. All youth shall be made aware of these materials and shall have access to them when requested. Where possible, employees
shall display materials, such as “safe zone” or “hate-free zone” posters that
convey to youth that the facility maintains an LGBT–friendly environment. [Facility] shall ensure that employees are made aware of local LGBT resources and
with to provide supportive services to LGBT youth.
v
[Facility] shall provide LGBT youth with access to educational, rehabilitative,
recreational, and other programming on the same bases as other youth. Youth
orientation or gender identity.
B.
v
Employees shall not disclose a youth’s sexual orientation or gender identity to
other youth at the facility or to outside parties, individuals, or agencies, such as
health care or social service providers or a youth’s family and friends, without
the youth’s permission, unless such disclosure is necessary to comply with
state or federal law.
v
pose.
v
ity] from discussing a youth’s needs or services with other staff members or
when resolving a grievance.
C. Intake
v
160
Staff should be aware that LGBT youth are in various stages of awareness
and comfort with their sexual orientation and gender identity. Youth intake
interviewers shall sensitively inquire about fears the youth may have of being
harassed in the facility, but intake workers should not directly ask youth if they
are LGBT. Some youth will disclose that they are LGBT. If a youth discloses
their sexual orientation or gender identity, the intake worker should talk with
the youth about it in an open and non-judgmental fashion and determine if the
youth has particular concerns or needs related to being LGBT.
D. Youth Placement
v
Placement decisions for LGBT youth shall occur as soon as possible after intake
so the youth is not at risk while awaiting a decision regarding placement. All
individualized, based on good juvenile correctional practices, and shall prioritize the youth’s physical and emotional well-being.
v
Youth shall not be prohibited from having a roommate based on a youth’s
actual or perceived sexual orientation. If a youth is fearful of rooming with a
particular youth, he or she will be provided a different roommate or a single
-
v
LGBT youth shall not be placed in isolation or segregation as a means of keeping them safe from discrimination, harassment, or abuse. LGBT youth shall not
v
Transgender youth shall not automatically be housed according to their birth
sex. [Facility] staff shall make housing decisions for transgender youth based
on the youth’s individualized needs and should prioritize the youth’s emotional and physical safety taking into account the youth’s perception of where he
or she will be most secure, as well as any recommendations from the youth’s
health care provider. Generally, it is most appropriate to house transgender
youth based on their gender identity. If necessary to ensure their privacy and
safety, transgender youth shall be provided a single room, if available.
E. Names and Language
v
Employees, volunteers, and contractors, when working with youth at [facility]
shall use respectful language and terminology that does not further stereotypes
about LGBT people.
v
Employees, volunteers, and contractors of [facility], in the course of their work,
shall not refer to youth by using derogatory language in a manner that conveys
bias towards or hatred of LGBT people. In particular, employees of [facility]
shall not imply to or tell LGBT youth that they are abnormal, deviant, or sinful,
or that they can or should change their sexual orientation or gender identity
v
Transgender youth shall be referred to by their preferred name and the prolegally changed. All written documentation about a transgender youth shall
utilize the youth’s preferred name as well noting the youth’s legal name recognized by the court.
F.
Clothing and Gender Presentation
v
Youth shall be allowed to dress and present themselves in a manner consistent
161
Appendices
tion procedures and facility safety and security needs.
with their gender identity. [Facility] shall provide youth with institutional
clothing, including undergarments, appropriate for the youth’s gender identity
and gender presentation.
v
Grooming rules and restrictions, including rules regarding hair, make-up,
shaving, etc., shall be the same in male and female units. Transgender girls
shall not be required to have a male haircut, or to wear masculine clothing.
Transgender boys shall not be required to maintain a female hairstyle, to wear
make-up, or to wear feminine clothing.
G. Bathrooms and Showers
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v
Consistent with the facility’s reasonable and necessary security policies, [facility] shall provide transgender youth with safety and privacy when using the
shower and bathroom and when dressing and undressing. Transgender youth
shall not be required to shower or undress in front of other youth and shall be
permitted to use single occupancy bathrooms and showers, if available. Such
accommodation shall be provided in a sensitive manner.
H. Medical and Mental Health Care
I.
v
[Facility] shall provide transgender youth with access to medical and mental
health care providers who are knowledgeable about the health care needs of
transgender youth, if the youth requests assessment or treatment. [Facility] will
provide all recommended transition-related treatments in accordance with the
medical and mental health assessments performed by the youth’s health care
provider and will provide transportation for the youth to receive such treatments, if necessary.
v
If prior to arriving at the facility a transgender youth has been receiving transgender-related medical care, such as hormone therapy or supportive counseling, [facility] medical staff shall consult with the youth’s medical providers and
shall continue to provide the youth with all transition related treatments that
are medically necessary according to the youth’s provider and accepted professional standards. Hormone therapy shall continue at current levels pending
this consultation.
v
[Facility’s] health care providers shall facilitate exploration of gender or sexuality issues with LGBT youth in the same manner as with other youth: by being
open and non-judgmental.
v
In accordance with accepted health care practices which recognize that attempting to change a person’s sexual orientation or gender identity is harmful, [facility] shall not employ or contract with mental health providers who
attempt to change a youth’s sexual orientation or gender identity.
v
LGBT youth shall not participate in sex offender treatment or counseling unless
required to do so by a court. All sex offender treatment shall not discriminate
based on sexual orientation and gender identity and shall not criminalize or
pathologize LGBT identity.
Search Issues
v
162
LGBT youth shall not be physically searched in a manner that is humiliating or
degrading or for the purpose of determining the youth’s physical anatomy.
v
Transgender youth may request that either a male or female staff member
conduct a strip search, if such search is required. [Facility] shall accommodate
this request when possible and consistent with maintaining the security of the
facility.
IV. Procedures
v
In order for employees, volunteers, and contractors to have the awareness and
capacity to effectively work with LGBT youth in this facility, all facility administrators, employees, volunteers, and contractors are required to attend training
on working with LGBT youth. This training should teach participants: 1) the
goals and requirements of the facilities Nondiscrimination Policy and Practice
Guidelines Regarding LGBT Youth; 2) how to work with LGBT youth in a respectful and nondiscriminatory manner; and 3) how to recognize, prevent, and
respond to harassment against LGBT youth.
v
All employees and administrators of [facility] shall receive training about
LGBT youth during their orientation and as part of their continuing education
tise in working with LGBT youth.
v
All new facility administrators, employees, volunteers, and contractors shall
receive a copy of the Policy and Practice Guidelines with their orientation materials. Current administrators, employees, volunteers, and contractors shall
receive a copy of the Policy and Practice Guidelines before it is to go into effect.
B. Policy Dissemination to Youth
v
At the time of intake, [facility staff] shall verbally inform all youth about the
facility’s Policy and Practice Guidelines, including the youth’s rights and
responsibilities under this policy and the procedures for reporting violations.
Each youth shall receive a copy of the Policy and Practice Guidelines [and all
other policies related to grievance procedures] during intake. Additional copies
of the policy shall also be provided to youth when requested.
C. Responsibilities of Employees and Contractors to Respond to and Report Harassment
v
Employees of [facility] shall promptly and appropriately intervene when a
youth physically, verbally, or sexually abuses or harasses another youth based
on the youth’s actual or perceived sexual orientation or gender identity.
v
All employees and contractors shall be required to report all incidents in violation of this policy in accordance with facility operating procedures. Failure to
report an incident may result in disciplinary or other consequences.
v
[Facility] employees have an obligation to report conduct by other employees
and contractors that may be in violation of this policy to the other individual’s
supervisor and the [facility] administration.
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Appendices
A. Training of Employees, Volunteers, & Contractors
D. Reporting Procedures for Youth
v
Youth shall be able to report violations of this policy following established faof youth and contain other measures to prevent retaliation.
E. Enforcement
v
Supervisory and management staff shall treat all reports of violations of this
policy seriously. The [facility] administration shall promptly and effectively
established procedures when employees or contractors report violations.
F.
Scope
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v
This policy shall apply to all employees and volunteers of [facility], to employees or representatives of any agency providing services on behalf of youth at
[facility], including but not limited to the Department of Health, Department
of Education, their contractors, volunteers, and any other relevant agencies or
Bisexual
A person who is emotionally, romantically, and sexually attracted to both males
and females.
Contractor
Any person who is employed directly by an agency or organization that has a contract or
Memorandum of Understanding with the [facility].
Discrimination
Any act, policy, or practice that, regardless of intent, has the effect of subjecting any youth
to differential treatment as a result of that youth’s actual or perceived sexual orientation
or gender identity.
Employee
Any person who is employed directly by [facility].
Gay
A person who primarily is emotionally, romantically, and sexually attracted to individuals of the same sex, typically in reference to boys or men.
Gender Expression
The manner in which a person expresses his or her gender through clothing, appearance,
behavior, speech, etc. Gender expression is a separate concept from sexual orientation
and gender identity. For example, a female may have a very masculine appearance, but
may identify as a heterosexual female.
164
Gender Identity
A person’s internal, deeply felt sense of being male or female, regardless of the person’s sex at birth.
Gender Identity Disorder (GID)
A diagnosable medical condition for individuals who are experiencing high levels of distress because they have a strong and persistent desire to be a different sex and a persistent discomfort with their birth sex. According to accepted professional standards, treatments, such as supportive counseling, hormone therapy, and sex reassignment surgery
are medically necessary for many youth or adults who have GID.
Lesbian
A girl or woman who primarily is emotionally, romantically, and sexually attracted
to girls or women.
Sexual Orientation
A person’s emotional, romantic, and sexual attraction, to individuals of the same sex or of
a different sex.
Transgender
A person whose gender identity (their understanding of themselves as male or female)
does not correspond with their birth sex. A transgender girl is a girl whose birth sex
was male but who understands herself to be female. A transgender boy is a boy whose
birth sex was female but who understands himself to be male.
Volunteer
Any person who provides services free of charge to [facility].
Youth
Any person committed to the custody and care of [facility], any person who is subject to
supervision by [facility], or any person who is in the custody of the state who receives
services from the [facility].
VI. Severability
The provisions of the Policy and Practice Guidelines shall be severable. If any provision
or portion of this policy or its application to any person or circumstance is held invalid,
the remainder of this policy or the application of the provision to other persons or circumstances is not affected.
165
Appendices
Harassment
Includes, but is not limited to, name-calling; disrespectful gestures, jokes, or comments;
inappropriate touching; threats of physical or emotional acts or negative consequences
(including religious condemnation); physical abuse; sexual abuse, including unwanted
sex acts, touching, pantomime, and threats; and emotional abuse, such as shunning or
isolation. Attempting to change a youth’s sexual orientation or gender identity is also a
form of harassment.
Hidden injustice
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Appendix B
Relevant Statutory Language from the
Juvenile Justice and Delinquency Prevention Act
DEINSTITUTIONALIZATION OF STATUS OFFENDERS (DSO):
Statutory language - 42 U.S.C. 5633(a)(11) and (a)(23):
(11) shall, in accordance with rules issued by the Administrator, provide that—
(A) juveniles who are charged with or who have committed an offense that would not
be criminal if committed by an adult, excluding—
(i) juveniles who are charged with or who have committed a violation of section
922 (x)(2) of title 18 or of a similar State law;
(ii) juveniles who are charged with or who have committed a violation of a valid
court order; and
(iii) juveniles who are held in accordance with the Interstate Compact on
Juveniles as enacted by the State;
shall not be placed in secure detention facilities or secure correctional facilities; and
(B) juveniles—
(i) who are not charged with any offense; and
(ii) who are—
(I) aliens; or
(II) alleged to be dependent, neglected, or abused;
shall not be placed in secure detention facilities or secure correctional facilities;
(23) provide that if a juvenile is taken into custody for violating a valid court order issued
for committing a status offense—
(A) an appropriate public agency shall be promptly notified that such juvenile is held
in custody for violating such order;
(B) not later than 24 hours during which such juvenile is so held, an authorized
representative of such agency shall interview, in person, such juvenile; and
(C) not later than 48 hours during which such juvenile is so held—
(i) such representative shall submit an assessment to the court that issued such
order, regarding the immediate needs of such juvenile; and
(ii) such court shall conduct a hearing to determine—
(I) whether there is reasonable cause to believe that such juvenile
violated such order; and
(II) the appropriate placement of such juvenile pending disposition of the
violation alleged;
SIGHT AND SOUND SEPARATION:
Statutory language - 42 U.S.C. 5633(a)(12):
(12) provide that—
(A) juveniles alleged to be or found to be delinquent or juveniles within the purview of
paragraph (11) will not be detained or confined in any institution in which they have
contact with adult inmates; and
(B) there is in effect in the State a policy that requires individuals who work with both
such juveniles and such adult inmates, including in collocated facilities, have been
trained and certified to work with juveniles;
JAIL REMOVAL:
Statutory language - 42 U.S.C. 5633(a)(13):
(13) provide that no juvenile will be detained or confined in any jail or lockup for adults
except—
(A) juveniles who are accused of nonstatus offenses and who are detained in such jail or
lockup for a period not to exceed 6 hours—
(i) for processing or release;
(ii) while awaiting transfer to a juvenile facility; or
(iii) in which period such juveniles make a court appearance;
and only if such juveniles do not have contact with adult inmates and only if there
is in effect in the State a policy that requires individuals who work with both such
juveniles and adult inmates in collocated facilities have been trained and certified
to work with juveniles;
(B) juveniles who are accused of nonstatus offenses, who are awaiting an initial court
appearance that will occur within 48 hours after being taken into custody (excluding
Saturdays, Sundays, and legal holidays), and who are detained in a jail or lockup—
(i) in which—
(I) such juveniles do not have contact with adult inmates; and
(II) there is in effect in the State a policy that requires individuals who work
with both such juveniles and adults inmates in collocated facilities have been
trained and certified to work with juveniles; and
(ii) that—
(I) is located outside a metropolitan statistical area (as defined by the Office
of Management and Budget) and has no existing acceptable alternative
placement available;
(II) is located where conditions of distance to be traveled or the lack of
highway, road, or transportation do not allow for court appearances within 48
hours (excluding Saturdays, Sundays, and legal holidays) so that a brief (not
to exceed an additional 48 hours) delay is excusable; or
(III) is located where conditions of safety exist (such as severe adverse, lifethreatening weather conditions that do not allow for reasonably safe travel),
in which case the time for an appearance may be delayed until 24 hours after
the time that such conditions allow for reasonable safe travel;
U.S. Department of Justice
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention
Guidance Manual
for
Monitoring Facilities
Under the Juvenile Justice
and
Delinquency Prevention
Act of 2002
January 2007
Preface
The purpose of this manual is to assist states in monitoring for compliance with three of the four
core protections of the Juvenile Justice and Delinquency Prevention (JJDP) Act of 2002. The
three core protections addressed in this manual are deinstitutionalization of status offenders,
removal of juveniles from adult jails and lockups, and separating adult offenders from juveniles
in institutions. The fourth core protection, disproportionate minority confinement, has a separate
manual, Disproportionate Minority Confinement Technical Assistance Manual, which was
revised and updated in August 2006.
This manual was first published in December 2001, updated and revised in September 2003 and
again in January 2007 to comply with the Juvenile Justice and Delinquency Prevention Act of
2002, which took effect on October 1, 2003.
For further information about this manual and monitoring for compliance, please contact
OJJDP’s Compliance Monitoring Coordinator or the State Representative assigned to your state
at:
Office of Juvenile Justice and Delinquency Prevention
810 Seventh Street NW.
202–307–5911
202–307–2819 (fax)
ii
Table of Contents
Section 1: Background of the Juvenile Justice and Delinquency Prevention Act ...................1
1.1 Deinstitutionalization of Status Offenders (DSO) .....................................................................2
1.2 Separation of Juveniles From Adult Offenders (Separation).....................................................2
1.3 Removal of Juveniles From Adult Jails and Lockups (Jail Removal).......................................3
1.4 Reduction of Disproportionate Minority Confinement (DMC).................................................4
Section 2: Monitoring for Compliance: Adult Jails and Lockups.............................................5
2.1 Definitions Related to Adult Jails and Lockups ........................................................................5
2.2 Definitions of Secure and Nonsecure Custody of Juveniles Held in Adult Jails and Lockups .6
Secure Custody ..........................................................................................................................6
Nonsecure Custody ....................................................................................................................9
2.3 Compliance With Deinstitutionalization of Status Offenders .................................................11
Prohibition on Secure Holding ................................................................................................11
Youth Handgun Safety Act Exemption ...................................................................................11
Monitoring for Deinstitutionalization of Status Offenders......................................................11
2.4 Compliance With Jail Removal ...............................................................................................12
Prohibition and Exceptions to the Secure Holding of Juveniles..............................................12
Six-Hour Hold Exception ........................................................................................................12
Removal (Rural) Exception .....................................................................................................13
Transfer or Waiver Exception..................................................................................................14
2.5 Compliance With Separation ...................................................................................................14
Juveniles Shall Not Have Contact With Adult Inmates...........................................................14
Administrative Transfers .........................................................................................................15
Transferred or Waived Juveniles .............................................................................................15
2.6 Facility Reporting Requirements .............................................................................................16
Summary of the JJDP Act: Adult Jails and Lockups.....................................................................18
Section 3: Monitoring for Compliance: Juvenile Facilities......................................................20
3.1 Definitions Related to Juvenile Facilities ................................................................................20
3.2 Compliance With Deinstitutionalization of Status Offenders .................................................21
Secure Holding of Status Offenders—Prohibitions and Exceptions .......................................21
Youth Handgun Safety Act Exemption ...................................................................................22
Out-of-State Runaways ............................................................................................................22
Federal Wards ..........................................................................................................................22
Exception for Status Offenders Who Violate a Valid Court Order (VCO Exception)............23
3.3 Compliance With Jail Removal ...............................................................................................24
3.4 Compliance With Separation ...................................................................................................24
Transferred, Waived, or Certified Youth.................................................................................25
Adults Under the Jurisdiction of the Juvenile Court................................................................25
3.5 Facility Reporting Requirements .............................................................................................25
Summary of the JJDP Act: Juvenile Detention or Correctional Facilities ....................................27
iii
Section 4: Monitoring for Compliance: Other Facilities..........................................................28
4.1 Collocated Facilities ................................................................................................................28
Classifying Facilities................................................................................................................28
Definitions of Collocated Facilities and Related Complex of Buildings.................................28
Criteria for Collocated Facilities..............................................................................................28
Annual Onsite Review Requirement .......................................................................................29
Collocated Facility Reporting Requirement ............................................................................30
4.2 Court Holding Facilities...........................................................................................................30
4.3 Adult Prisons............................................................................................................................31
Status Offenders.......................................................................................................................31
Delinquent Offenders...............................................................................................................31
Transferred, Waived, or Certified Youth.................................................................................31
4.4 Nonsecure Community-Based Programs and Facilities ..........................................................31
4.5 Secure Mental Health Treatment Units ...................................................................................32
Summary of the JJDP Act: Other Facilities...................................................................................33
Section 5: State Monitoring of Facilities....................................................................................34
5.1 Adequate System of Monitoring for Compliance....................................................................34
5.2 Native American Tribes...........................................................................................................36
Monitoring Facilities on Native American Reservations ........................................................36
Grants to Native American Tribes ...........................................................................................36
5.3 Out-of-State Juveniles..............................................................................................................37
Section 6: Reporting Requirements ...........................................................................................39
6.1 Annual Compliance Monitoring Report Requirement.............................................................39
6.2 Deadline To Submit Annual Report ........................................................................................39
6.3 Reporting Requirements ..........................................................................................................40
Deinstitutionalization of Status Offenders...............................................................................40
Jail Removal.............................................................................................................................40
Separation ................................................................................................................................42
6.4 Technical Assistance Reporting Tools ....................................................................................43
Spreadsheet Format..................................................................................................................43
6.5 Monitoring Report Exemption.................................................................................................43
6.6 Annual Report to the Governor and Legislature......................................................................44
Section 7: Standards for Demonstrating Compliance ..............................................................45
7.1 Grant Funds Affected by Compliance .....................................................................................45
Formula Grant Funds ...............................................................................................................45
Community Prevention Grant Funds—State Eligibility ..........................................................45
Community Prevention Grant Funds—Unit of Local Government Eligibility .......................46
7.2 Deadline for Establishing Eligibility for Formula Grant Funds ..............................................47
7.3 Demonstrating Compliance: Deinstitutionalization of Status Offenders ................................47
Criterion A ...............................................................................................................................47
Criterion B ...............................................................................................................................49
iv
Criterion C ...............................................................................................................................50
7.4 Demonstrating Compliance: Jail Removal ..............................................................................51
Numerical De Minimis Standard .............................................................................................51
Substantive De Minimis Standard ...........................................................................................52
7.5 Demonstrating Compliance: Separation ..................................................................................52
Summary of Standards for Demonstrating Compliance ................................................................53
Section 8: Definitions ...................................................................................................................54
Appendixes
A. Juvenile Justice and Delinquency Prevention Act of 1974, as amended
B. Formula Grants Consolidated Regulation, 28 CFR Part 31
C. Federal Register, January 9, 1981, Policy and Criteria for De Minimis Exceptions to Full
Compliance With Deinstitutionalization Requirement of Juvenile Justice and Delinquency
Prevention Act
D. Federal Register, August 16, 1982, Valid Court Order Criteria
E. Federal Register, November 2, 1988, Policy Guidance for Nonsecure Custody of Juveniles in
Adult Jails and Lockups; Notice of Final Policy
F. Federal Register, November 2, 1988, Criteria for De Minimis Exceptions to Full
Compliance With the Jail Removal Requirement; Final Rule
G. Federal Register, August 1, 1994, Delinquency Prevention Program Guideline
H. Valid Court Order Checklist
I. Collocated Facilities Checklists
J. Technical Assistance Tool: Annual Compliance Monitoring Report, Paper Format
v
Section 1
Background of the Juvenile Justice and
Delinquency Prevention Act
Since its passage in 1974, the Juvenile Justice and Delinquency Prevention (JJDP) Act has
changed the way states and communities deal with troubled youth. The original goals of the Act
and of the Office of Juvenile Justice and Delinquency Prevention (OJJDP) were simple: to help
state and local governments prevent and control juvenile delinquency and to improve the
juvenile justice system. These goals were reaffirmed in the reauthorization of the Act in 2002. A
second important element in the 1974 Act was to protect juveniles in the juvenile justice system
from inappropriate placements and from the harm—both physical and psychological—that can
occur as a result of exposure to adult inmates. Yet another important element of the JJDP Act
emphasized the need for community-based treatment for juvenile offenders. In passing the JJDP
Act, Congress recognized that keeping children in the community is critical to their successful
treatment.
The JJDP Act, through the 2002 reauthorization, establishes four core protections with which
participating States and territories must comply to receive grants1 under the JJDP Act:
Deinstitutionalization of status offenders (DSO).
Separation of juveniles from adults in institutions (separation).
Removal of juveniles from adult jails and lockups (jail removal).
Reduction of disproportionate minority contact (DMC), where it exists.
Meeting the core protections is essential to creating a fair, consistent, and effective juvenile
justice system that advances the important goals of the JJDP Act.
Each participating state must develop and implement a strategy for achieving and maintaining
compliance with the four core protections as part of its annual Formula Grants State Plan. A
state’s level of compliance with each of the four core protections determines eligibility for its
continued participation in the Formula Grants programs. For example, failure to achieve or
maintain compliance, despite good faith efforts, reduces the Formula Grant to the state by 20
percent for each core requirement not met. In addition, the noncompliant state must agree to
expend 50 percent of the state’s allocation for that year to achieve compliance with the core
requirement(s) with which it is not in compliance.
As part of the strategy for maintaining compliance, states must provide for an adequate system of
monitoring to ensure that the core protections are met. States must visit and collect information
1
Formula Grants and the Title V Community Prevention Grants are the grants that are affected
by compliance with the core protections.
1
from facilities to demonstrate compliance with the JJDP Act. On an annual basis, each state
submits this information in the form of a compliance monitoring report to OJJDP. The report
provides compliance data and a detailed description of how the state is meeting the core
protections. The following four sections contain information on each of the core protections.
1.1 Deinstitutionalization of Status Offenders (DSO)
The DSO provision was included in the original JJDP Act. As enacted in 1974, the Act required
States to “provide within three years. . . that juveniles who are charged with or who have
committed offenses that would not be criminal if committed by an adult (i.e., status offenders),
shall not be placed in juvenile detention or correctional facilities, but must be placed in shelter
facilities.”
A 1977 amendment to the JJDP Act expanded the DSO provision to expressly include
nonoffenders such as dependent and neglected youth. It also removed the requirement that these
juveniles be placed in shelter facilities, allowing state and local governments additional latitude
in the placement of status offenders and nonoffenders.
In 1980, Congress specified that status offenders and nonoffenders must be removed from
“secure” juvenile detention and correctional facilities. Congress also added a new jail and lockup
removal requirement, which prohibits juveniles—including accused and adjudicated delinquents,
status offenders, and nonoffenders—from being detained in adult jails and adult lockups.
Congress further amended the JJDP Act that year to allow states to detain or confine status
offenders in secure juvenile facilities for the violation of a valid court order.
As amended by the JJDP Act of 2002, the DSO requirement currently reads as follows:
“juveniles who are charged with or have committed an offense that would not be criminal if
committed by an adult—excluding juveniles who are charged with or who have committed a
violation of section 922(x)(2) of title 18, United States Code, or of a similar state law; juveniles
who are charged with or who have committed a violation of a valid court order; and juveniles
who are held in accordance with the Interstate Compact on Juveniles as enacted by the State—
shall not be placed in secure detention facilities or secure correctional facilities.” In addition, the
2002 Act states that “juveniles who are not charged with any offense and who are aliens or
alleged to be dependent, neglected, or abused shall not be placed in secure detention facilities or
secure correctional facilities.”
1.2 Separation of Juveniles From Adult Inmates (Separation)
Since the inception of the juvenile justice system, the practice of incarcerating juveniles with
adult inmates has been criticized. The placement of juveniles in institutions where they are
mixed with adult inmates is emotionally and physically traumatic, resulting in further
victimization. Moreover, commingling juvenile offenders with adults may provide an education
2
in crime and undercuts the intent of a separate juvenile justice system designed to rehabilitate
and treat juvenile offenders.
In one of the original provisions of the JJDP Act, Congress sought to provide separation between
adult inmates and juveniles in institutional settings such as jails, lockups, prisons, and other
secure facilities. The JJDP Act of 2002, as amended, provides that “juveniles alleged to be or
found to be delinquent,” as well as status offenders and nonoffenders, “will not be detained or
confined in any institution in which they have contact with adult inmates.” The 2002 Act further
requires that “there is in effect in the state a policy that requires individuals who work with both
such juveniles and such adult inmates, including in collocated facilities, [to] have been trained
and certified to work with juveniles.”
1.3 Removal of Juveniles From Adult Jails and Lockups (Jail
Removal)
Although many of the juveniles taken into police custody and referred to the juvenile court can
be released to parental custody to await court action, juveniles who have committed serious
crimes and are a safety risk to the community may be removed from their homes and placed in
secure facilities pending court hearings. Prior to the passage of the jail and lockup removal
provision in the JJDP Act, this routinely resulted in placing juveniles in adult jails or lockups in
danger of physical or emotional harm from adult prisoners. Research has shown that young
people held in adult facilities were sexually assaulted five times more often than youth in
juvenile facilities, assaulted by staff twice as often, and assaulted with a weapon 50 percent more
often.2
In an effort to protect juveniles in custody and to meet the 1974 separation requirement of the
JJDP Act, jail officials sometimes placed juveniles in solitary confinement. This practice
aggravated the psychological effects of jailing and, in some cases, lead to suicide. In fact,
juveniles in jails are found to commit suicide eight times more often than those in juvenile
detention facilities.3 Moreover, young people in adult facilities were being deprived of
educational and other services provided in juvenile facilities. For these reasons, Congress
amended the JJDP Act in 1980 to include the jail and lockup removal requirement, which states
that “no juvenile shall be detained or confined in any jail or lockup for adults,” a requirement
reaffirmed in the JJDP Act of 2002.
2
Dale Parent et al. , Conditions of Confinement: Juvenile Detention and Corrections Facilities Research Summary, Office of Juvenile Justice and Delinquency Prevention (1994) and Martin Forst,
Jeffrey Fagan, and T. Scott Vivona, “Youth in Prisons and Training Schools: Perceptions and
Consequences of the Treatment-Custody Dichotomy, “Juvenile & Family Court Journal:40(1)(l989).
3
Michael G. Flaherty, An Assessment of the National Incidence of Juvenile Suicide in
Adult Jails, Lockups, and Juvenile Detention Centers, The University of Illinois, UrbanaChampaign (1980).
3
The JJDP Act of 2002 provides the following exception: “juveniles who are accused of nonstatus
offenses who are detained in such jail and lockup for a period not to exceed 6 hours for
processing or release, while awaiting transfer to a juvenile facility, or in which period such
juveniles make a court appearance, and only if such juveniles do not have contact with adult
inmates.” Under special circumstances, the Act also provides for a “rural” exception of up to 48
hours (excluding Saturdays, Sundays, and legal holidays). (See section 2.4 of this Guidance
Manual for details.)
1.4 Reduction of Disproportionate Minority Contact (DMC)
In 1988, Congress took note of the phenomenon of disproportionate minority confinement in the
juvenile justice system. In 1992, Congress required states to address disproportionate minority
confinement as a condition for receiving 25 percent of the state’s Formula Grants program
allocation, making it the fourth and final core protection of the JJDP Act. The 1992 amendments
required states to determine if minority juveniles are disproportionately confined in secure
detention and correctional facilities and, if so, to address any features of their juvenile justice
systems that may account for the disproportionate confinement of minority juveniles. This core
requirement neither required nor established numerical standards or quotas in order for a state to
achieve or maintain compliance. Rather, it required states to identify whether minority juveniles
are disproportionately detained or confined in secure facilities, provide a complete assessment of
why disproportionate minority confinement exists, and provide an intervention plan that seeks to
reduce the disproportionate confinement of minority juveniles in secure facilities.
As amended by the JJDP Act of 2002, the concept of disproportionate minority confinement has
been broadened to address the disproportionate numbers of minority youth who come into
contact with the justice system at any point. The 2002 Act requires states to “address juvenile
delinquency prevention efforts and system improvement efforts designed to reduce, without
establishing or requiring numerical standards or quotas, the disproportionate number of juvenile
members of the minority groups, who come into contact with the juvenile justice system.”
4
Section 2
Monitoring for Compliance: Adult Jails and
Lockups
2.1 Definitions Related to Adult Jails and Lockups
Adult jail. A locked facility, administered by state, county, or local law enforcement and
correctional agencies, the purpose of which is to detain adults charged with violating criminal
law, pending trial. Also considered as adult jails are those facilities used to hold convicted adult
criminal offenders sentenced for less than 1 year.
Adult lockup. Similar to an adult jail except that an adult lockup is generally a municipal or
police facility of a temporary nature that does not hold persons after they have been formally
charged.
Civil-type juvenile offender. A civil-type juvenile offender is a juvenile who has been
charged with or adjudicated for an offense that is civil in nature. Examples include noncriminal
traffic violations and noncriminal fish and game violations.
Collocated facilities. Collocated facilities are facilities that are located in the same building,
or are part of a related complex of buildings located on the same grounds. (See section 4).
Nonoffender. A nonoffender is a juvenile who is subject to the jurisdiction of the juvenile
court, usually under abuse, dependency, or neglect statutes, for reasons other than legally
prohibited conduct of the juvenile. These cases are referred to by many names including
Children in Need of Services (CHINS), Children in Protective Services (CHIPS), and Families in
Need of Services (FINS).
Related complex of buildings. A related complex of buildings is two or more buildings that
share physical features such as walls and fences, or services beyond mechanical services (e.g.
heating, air conditioning, water and sewer); or the specialized services such as medical care,
food service, laundry, maintenance, engineering services, etc.
Residential. Pertains to facilities having the capacity to securely detain juveniles overnight.
Status offender. A status offender is a juvenile who has been charged with or adjudicated for
conduct that would not, under the law of the jurisdiction in which the offense was committed, be
a crime if committed by an adult. The following are examples of status offenses:
5
Truancy.
Violations of curfew.
Running away.
Underage possession and/or consumption of tobacco products.
Underage alcohol offenses. These offenses are considered status offenses, even though state
or local law may consider them delinquent offenses.4
2.2 Definitions of Secure and Nonsecure Custody of
Juveniles Held in Adult Jails and Lockups
Secure Custody
As used to define a detention or correctional facility, this term includes residential facilities
having construction features designed to physically restrict the movements and activities of
persons in custody (e.g., locked rooms and buildings, fences, or other physical structures). It
does not include facilities where physical restriction of movement or activity is provided solely
through facility staff (i.e., staff secure).
Further guidance in distinguishing nonsecure custody from secure custody comes from the
November 2, 1988, Federal Register announcement, Policy Guidance for Nonsecure Custody of
Juveniles in Adult Jails and Lockups; Notice of Final Policy. The policy states that a secure
detention or confinement status has occurred within a jail or lockup facility when a juvenile is
physically detained or confined in a locked room, set of rooms, or a cell that is designated, set
aside, or used for the specific purpose of securely detaining persons who are in law enforcement
custody. Secure detention or confinement may result either from being placed in such a room or
enclosure and/or from being physically secured to a cuffing rail or other stationary object.
4
With regard to underage alcohol offenses, in many states it is a criminal offense for any person
18 to 20 years old to consume or possess alcoholic beverages. Because this time period is limited (i.e., 3
years) and the age at which this is not a criminal offense is very broad (i.e., after the age of 21), these
alcohol offenses must be classified as status offenses if committed by a juvenile. However, criminal
alcohol offenses that apply to all adults (e.g., public intoxication) may be classified as delinquent
offenses.
6
Also considered secure are those facilities that contain doors with delayed egress devices that
have not received written approval by the authority having jurisdiction over fire codes and/or fire
inspections in the area in which the facility is located. The egress delay must never exceed the
time delay allowed by the fire code applicable to the area in which the facility is located, and the
maximum time delay allowed must be specified on the written approval. Facilities that contain
devices that exceed a 30-second delay are always considered secure, even though local code may
allow for a longer time delay.5
As examples, a juvenile placed in the following situations would be considered in a secure
custody status:
A juvenile placed in an unlocked room within the secure perimeter of an adult jail or lockup
or a juvenile detention center.
A juvenile handcuffed to a rail in an otherwise nonsecure area of an adult jail or lockup.
A juvenile placed in a room that contains doors with unapproved delayed egress devices or
approved delayed egress devices with a delay of more than 30 seconds.
A juvenile being processed in a secure booking area where an unsecure booking area is
available within a facility.
A juvenile left in a secure booking area after being photographed and fingerprinted.
A juvenile placed in a cell within an adult jail or lockup, whether or not the cell door is
locked.
A juvenile placed in an adult jail/lockup in the same area as an adult that is secured to a
cuffing rail, bench, or other construction feature designed, set aside, or used to securely
detain individuals.
5
This is the maximum delay allowed by the National Fire Protection Association, as published in
the Life Safety Code Handbook. It should be noted that for these devices to be used, the Life Safety Code
Handbook dictates that other requirements must be met, such as the existence of an “approved supervised
automatic fire detection system or approved supervised automatic sprinkler system.”
7
Flowchart To Determine if a Juvenile Is in a
Secure or Nonsecure Custody Status in an Adult Jail or Lockup
Is the area where the juvenile is held located within a larger secure perimeter?
YES
NO
YES
Is the juvenile physically secured to a cuffing rail or other stationary object?
NO
Is the area where the juvenile is held designed or intended to be used for residential purposes?
YES
NO
NO
YES
Is the area where the juvenile is held
ever designated, set aside, or used
primarily as a secure detention area?
Is the juvenile sight and sound
separated from incarcerated adults?
YES
NO
YES
NO
Is the use of the area limited to providing nonsecure custody only long enough and for the
purposes of identification, investigation, processing, release to parents, or arranging transfer to a
juvenile facility or court?
NO
YES
Is the juvenile under continuous visual supervision by a law enforcement officer or facility staff
during the period of time that he or she is in nonsecure custody?
NO
Juvenile is in a Secure Custody Status
Is the area where the juvenile is held an unlocked multipurpose area such as a lobby, office, or
interrogation room?
YES
Does the facility contain delayed egress
devices?
YES
Is the delay greater than 30 seconds?
YES
NO
NO
Have the devices received written
approval from the local authority having
jurisdiction over fire codes and fire
inspections?
Juvenile is in a
Nonsecure Custody
Status
YES
NO
Flowchart based on the November 2,
1998, Federal Register announcement,
Policy Guidance for Nonsecure Custody
of Juveniles in Adult Jails and Lockups.
Chart revised 10/29/2002
8
Nonsecure Custody
A juvenile may be in law enforcement custody and, therefore, not free to leave or depart from the
presence of a law enforcement officer or at liberty to leave the premises of a law enforcement
facility but not be in a secure detention or confinement status. OJJDP’s Policy Guidance for
Nonsecure Custody of Juveniles in Adult Jails and Lockups6 states that all of the following
policy criteria, if satisfied, will constitute nonsecure custody of a juvenile in an adult jail or
lockup facility:
The area where the juvenile is held is an unlocked multipurpose area, such as a lobby, office,
or interrogation room that is not designated, set aside, or used primarily as a secure detention
area or is not part of such an area,7 or, if a secure area, is used only for processing purposes;
The juvenile is not physically secured to a cuffing rail or other stationary object during the
period of custody in the facility;
The use of the area is limited to providing nonsecure custody only long enough and for the
purposes of identification, investigation, processing, release to parents, or arranging transfer
to an appropriate juvenile facility or to court;
In no event can the area be designed or intended to be used for residential purposes; and
The juvenile must be under continuous visual supervision (which may include electronic
supervision, e.g. camera) by a law enforcement officer or facility staff during the period of
time that he or she is in nonsecure custody.
In addition, a juvenile placed in the following situations would be considered in a nonsecure
status:
A juvenile handcuffed to a nonstationary object. If the five criteria listed above are adhered
to, handcuffing techniques that do not involve cuffing rails or other stationary objects are
considered nonsecure.
A juvenile being processed through a secure booking area. Where a secure booking area is all
that is available and continuous visual supervision is provided throughout the booking
process and the juvenile remains in the booking area only long enough to be photographed
and fingerprinted (consistent with state law and/or judicial rules), the juvenile is not
considered to be in a secure detention status. Continued nonsecure custody for the purposes
of interrogation, contacting parents, or arranging an alternative placement must occur outside
the booking area.
6
Federal Register 53, no. 212 (November 2, 1988):44367 (see appendix E).
7
An unlocked multipurpose area need not be considered part of a secure detention area if, while
the juvenile is in the area, sight and sound separation from adult offenders is maintained at all times.
9
A juvenile placed in a secure police car for transportation. The JJDP Act applies to secure
detention facilities and secure correctional facilities; therefore, a juvenile placed in a police
car for transportation would be in a nonsecure status.
A juvenile placed in a nonsecure runaway shelter but prevented from leaving because of staff
restricting access to exits. A facility may be nonsecure (i.e., staff secure) if physical
restriction of movement or activity is provided solely through facility staff.
A juvenile placed in a room that contains doors with delayed egress devices that have been
approved in writing (including a specification of the maximum time delay allowed) by the
authority having jurisdiction over fire codes and fire inspections in the area in which the
facility is located and that comply with the egress delay established by the authority having
jurisdiction over fire codes and fire inspections. In no case shall this delay exceed 30 seconds
(see footnote 4 on page 6).
10
2.3 Compliance With Deinstitutionalization of Status
Offenders
Prohibition on Secure Holding
Adult jails and lockups cannot hold status offenders, nonoffenders, alien juveniles, or civil-type
juvenile offenders in a secure manner at any time. These juveniles may be detained in a
nonsecure area of an adult jail or lockup for processing while awaiting transportation to a
nonsecure shelter care facility or a juvenile detention center or while waiting release to a parent
or guardian.
Youth Handgun Safety Act Exception
The Youth Handgun Safety Act (18 U.S.C. 922(x)) prohibits possession of a handgun by a minor
under the age of 18. There are exceptions to this act such as using a handgun in a gun safety
course or hunting under the supervision of an adult. Because the Youth Handgun Safety Act
applies only to juvenile offenders and handgun possession, in most cases, would not be a crime if
committed by an adult, it fits the definition of a status offense. However, the Violent Crime
Control and Law Enforcement Act of 1994, Subtitle B, Youth Handgun Safety, amended the
JJDP Act to provide that juveniles who violate United States Code, Title 18, Section 922(x) or a
similar state law can be placed in secure detention or secure correctional facilities without
violating the DSO requirement. Because of this exception to the JJDP Act, violations of the
Youth Handgun Safety Act or a similar state law can be considered either status offenses
punishable by detention or confinement or delinquent offenses. The number of these offenders
held securely must be reported to OJJDP in the state’s annual monitoring report but will not be
reported as violations of the DSO or Jail Removal core requirements.
Monitoring for Deinstitutionalization of Status Offenders
Adult jails and lockups should keep records of every juvenile who enters the facility. For status
offenders, nonoffenders, alien juveniles, and civil-type juvenile offenders, the records should
indicate if the juvenile was held securely or nonsecurely. If such a juvenile is held in a secure
manner at any time, this hold would count as a violation of both DSO and jail removal. If held in
a secure manner and not sight and sound separated from adult detainees while being held
securely, the result would be a violation of DSO, separation, and jail removal.
11
2.4 Compliance With Jail Removal
Prohibition and Exceptions to the Secure Holding of Juveniles
The JJDP Act states that “no juvenile shall be detained or confined in any jail or lockup for
adults....” There are three exceptions to this requirement:
A 6-hour hold exception for alleged delinquent offenders.
An exception for alleged delinquent offenders in rural areas if certain criteria are met.
An exception for juveniles waived or transferred to a criminal court.
Six-Hour Hold Exception
OJJDP regulations allow for a 6-hour “grace period” that permits the secure detention in an adult
jail or lockup of those juveniles accused of committing criminal-type offenses (i.e., offenses that
would be a criminal offense if committed by an adult). Under this exception, the juvenile cannot
have sight or sound contact with adult inmates during the time the juvenile is in a secure custody
status in the adult jail or lockup. The 6 hours can be used in the following circumstances:
An accused delinquent could be detained for up to 6 hours for the purposes of processing or
release or transfer to a juvenile facility. Any holding of juveniles should be limited to the
absolute minimum time necessary to complete these purposes, not to exceed 6 hours. An
accused or adjudicated delinquent could be detained for up to 6 hours before a court
appearance and up to an additional 6 hours after a court appearance, but any hold of an
adjudicated delinquent that is not related to a court appearance is a violation of jail removal.
The following is noted about this exception:
The 6-hour time periods cannot be combined to extend the time frame. For example, a
juvenile cannot be detained for 4 hours before and 7 hours after the court appearance.
Once the juvenile has been placed in a secure custody status and the 6-hour period has
begun, the facility cannot temporarily take the juvenile out of a secure custody status and
begin the 6-hour time period again. For example, if a juvenile was placed in a secure custody
status for 4 hours, then was taken to a nonsecure interview room for 1 hour, then was
returned to a secure custody status for 2 hours, the total time to report for the jail removal
provision is 7 hours and would be a violation of the 6-hour limit.
A status offender, nonoffender, alien juvenile, or civil-type juvenile offender cannot be
securely detained for any length of time in an adult jail or lockup.
12
Adjudicated delinquents cannot be held for any length of time in adult jails or lockups as a
disposition.
A juvenile may not be transferred to a jail or lockup from a juvenile detention center for
disciplinary reasons.
Sight and sound separation from adult offenders must be maintained at all times pursuant to
the separation requirement.
Removal (Rural) Exception8
OJJDP regulations implement a statutory “rural” exception, allowing the temporary detention
beyond the 6-hour limit of juveniles accused of delinquent offenses who are awaiting an initial
court appearance with 48 hours (excluding weekends and holidays). It is important to note that
the rural exception does not apply to status offenders. Status offenders may not be held for any
length of time in an adult jail or lockup.
States must have received prior approval from OJJDP to use the rural exception.9
In a request to use the Rural Exception, states must document, in writing, that all of the
following conditions are met in order for an accused juvenile criminal-type offender, awaiting an
initial court appearance, to be detained in an adult jail or lockup under the Rural Exception:
The geographic area having jurisdiction over the juvenile must be outside a metropolitan
statistical area (i.e., qualify as a “rural” area) as defined by the Office of Management and
Budget;
A determination must be made that there is no existing acceptable alternative placement for
the juvenile pursuant to criteria developed by the state and approved by OJJDP;
The adult jail or lockup must have been certified by the state to provide for the sight and
sound separation of juveniles and adult inmates;
There is in effect in the state a policy that requires individuals who work with both juveniles
and adult inmates in collocated facilities to have been trained and certified to work with
juveniles;
OJJDP strongly recommends that jails and lockups that incarcerate juveniles provide youthspecific admissions screening and continuous visual supervision of juveniles incarcerated
pursuant to this exception.
8
Although cited in regulations as the “removal exception,” this provision is more commonly
referred to as the “rural exception” and for the purposes of this manual will continue to be referred to as
the rural exception.
9
28 CFR 31.303(f)(4)(i)(v)
13
If all of the above conditions are met, a juvenile awaiting an initial court appearance may be
detained for the following time periods:
Up to 48 hours (excluding weekends and holidays), or
If the facility is located where conditions of distance to be traveled or the lack of highway,
road, or other ground transportation does not allow for court appearances within 48 hours
(excluding Saturdays, Sundays, and legal holidays) so that a brief (not to exceed 48 hours)
delay is excusable; or
If the facility is located where conditions adverse to safety exist (e.g., severe, life-threatening
weather conditions that do not allow for reasonably safe travel), the time for an appearance
may be delayed until 24 hours after the time that such conditions allow for reasonably safe
travel.
These extended time periods cannot be used after the initial court appearance. After the initial
court appearance, the 6-hour exception applies and the juvenile could be held only for up to 6
hours prior to and 6 hours after a court appearance.
Transfer or Waiver Exception
If criminal felony charges have been filed against a juvenile in a court exercising criminal
jurisdiction, the juvenile can be detained in an adult jail or lockup. The jail and lockup removal
requirement does not apply to those juveniles formally waived or transferred to criminal court
and against whom criminal felony charges have been filed or to juveniles over whom a criminal
court has original or concurrent jurisdiction and such court’s jurisdiction has been invoked
through the filing of criminal felony charges. Note that waiver or transfer and the filing of
criminal felony charges does not transform a juvenile into an adult. Therefore, such a juvenile
can be detained (or confined after conviction) in a juvenile facility and commingled with
juvenile offenders until that juvenile reaches the state’s age of majority, at which time, he or she
must be separated from the juvenile population within 6 months.
2.5 Compliance With Separation
Juveniles Shall Not Have Contact With Adult Inmates
Separation must be achieved in all secure areas of the facility. Accused or adjudicated delinquent
offenders, status offenders, and nonoffenders cannot have contact with adult inmates, including
inmate trustees. Contact is defined to include any physical or sustained sight or sound contact.
Sight contact is defined as clear visual contact between adult inmates and juveniles within close
Guidance Manual for Monitoring Facilities Under
14
the JJDP Act
proximity to each other. Sound contact is defined as direct oral communication between adult
inmates and juvenile offenders.
Sight and sound separation may be accomplished architecturally or through policies and
procedures such as time phasing the use of an area to prohibit simultaneous use by juveniles and
adults. Brief and inadvertent or accidental contacts between juvenile offenders in a secure
custody status and adult inmates in secure nonresidential areas of the facility do not count as
violations.
Where a secure booking area is all that is available, continuous visual supervision is provided
throughout the booking process, and the juvenile remains in the booking area only long enough
to be photographed and fingerprinted (consistent with state law and/or judicial rules), the
juvenile is not considered to be in a secure detention status and separation would not apply
during this time. Once the booking process has been completed, the juvenile must be separated
immediately from adult inmates.
In accordance with current OJJDP policy and proposed regulation, the state must assure that no
juvenile offender shall enter under public authority, for any amount of time, into a secure setting
or secure section of an adult jail, lockup, or correctional facility as a disposition of an offense or
as a means of modifying their behavior (e.g., Shock Incarceration or Scared Straight).
Administrative Transfers
Adjudicated juvenile offenders cannot be reclassified administratively and transferred to an adult
(criminal) correctional authority to avoid the intent of separating juveniles from adult criminals
in jails or correctional facilities. A state is not prohibited from placing or transferring an accused
or adjudicated delinquent who reaches the state’s age of full criminal responsibility to an adult
facility when required or authorized by state law. An administrative transfer, however, without
statutory direction or authorization, of a juvenile offender to an adult correctional authority or a
transfer within a mixed juvenile and adult facility for placement with adult inmates, either before
or after a juvenile reaches the age of full criminal responsibility, is prohibited.
Transferred, Certified, or Waived Juveniles
A juvenile who has been transferred or waived or is otherwise under the jurisdiction of a
criminal court does not have to be separated from adult criminal offenders. This is due to the fact
that such a juvenile is not an accused or adjudicated delinquent (i.e., the juvenile is under a
criminal proceeding, not a delinquency proceeding). Likewise, an adult held in an adult jail or
lockup for a delinquency proceeding (generally related to a crime committed before reaching the
age of full criminal responsibility) can be held securely in an adult jail or lockup because the
adult is not a juvenile alleged to be or found to be delinquent. Both types of individuals can be
placed wherever the legislature or courts, where authorized, deem appropriate.
15
2.6 Facility Reporting Requirements
States must compile and report compliance monitoring data annually to the Administrator of
OJJDP. Section 223(a)(14) of the JJDP Act requires that states have an adequate system of
monitoring for compliance with the core protections. As part of this system, facilities must
collect data on juveniles held and report the data to the state. In addition, the state must conduct
regular onsite visits to monitor all adult jails and lockups and verify reported data. As part of an
adequate system of compliance monitoring states must inspect 100 percent of all adult jails and
lockups every 3 years. A minimum of 10 percent of all facilities must be visited annually.
To demonstrate compliance with the JJDP Act, all adult jails and lockups must report the
following:
Dates covered by the reporting period, as defined by the state monitoring agency.
Whether the facility held any juveniles in a secure custody status10 during the reporting
period. If no juveniles were held, the remaining reporting items do not apply for this
reporting period.
The total number of accused or adjudicated status offenders (including valid court order
violators, youth held in accordance with the Interstate Compact on Juveniles, and alien
juveniles) and nonoffenders securely detained for any length of time.
The total number of accused juvenile criminal-type offenders held securely for any length of
time for purposes other than identification, investigation, processing, release, transfer to
court, or transfer to a juvenile facility following initial custody.
The total number of accused juvenile criminal-type offenders held securely in excess of 6
hours (including those held in excess of 6 hours pursuant to the rural exception).
The total number of accused or adjudicated juvenile criminal-type offenders held securely in
excess of 6 hours prior to or following a court appearance or for any length of time not
related to a court appearance.
10
For the purposes of reporting on the adult jail and lockup removal and separation requirements,
only holding those juveniles who are under the age of the state age of majority and who are held in
violation of the JJDP Act are considered violations. In most states, this age is 18. However, 13 states have
a lower age of majority. For example, if a state’s age of majority was 16, only those juveniles under the
age of 16 that were held in an adult jail or lockup in excess of 6 hours would be reported as violations.
Because a 17-year-old in such a state can still be a nonoffender or commit status offenses, this exception
does not apply to the DSO requirement, as status offenders and nonoffenders are prohibited from being
held securely in an adult jail or lockup for any length of time even though the person may be above the
state’s age of majority.
16
If the state has received approval to use the rural exception, the following must be reported
for those adult jails or lockups located in areas where the rural exception applies:
The total number of juveniles accused of a criminal-type offense who were held in
excess of 6 hours but for less than 48 hours;
excess of 48 hours but not for more than an additional 48 hours because of conditions
of distance or lack of ground transportation; and
excess of 24 hours but not for more than an additional 24 hours after the time such
conditions as adverse weather allow for reasonably safe travel.
The total number of juveniles not separated from adult criminal offenders, including inmate
trustees.
Note: To gather data for the disproportionate minority contact requirement, the state should
request the race and/or ethnicity of each juvenile offender brought to the facility.
17
Summary of JJDP Act: Adult Jails and Lockups
Adult Jail and Lockup
Accused juvenile status
offender, nonoffender,
civil-type juvenile
offender, or alien
juvenile
Adjudicated juvenile
status offender
Secure holding prohibited.
Status offender
accused of violating a
valid court order
Status offender
adjudicated for violating
a valid court order
Accused juvenile
delinquent
Secure hold limited to up to 6 hours for identification, processing, release
to parents, or transfer to a juvenile facility or 6 hours prior to and 6 hours
after a court appearance. Juvenile must be sight and sound separated
from adults.
delinquent*
Secure hold limited to up to 6 hours for identification, processing, release
to parents, or transfer to a juvenile facility or 6 hours prior to and 6 hours
after a court appearance. Juvenile must be sight and sound separated
from adults.
Juvenile transferred to
criminal court and
charged with a
misdemeanor
Secure hold limited to 6 hours prior to and 6 hours after a court
appearance. Separation is not required.
criminal court and
convicted of a
misdemeanor
criminal court and
charged with or
convicted of a felony
No restrictions on holding.
Adult accused of or
convicted of a crime
* See “Removal (Rural) Exception” in section 2.4.
18
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19
Section 3
Monitoring for Compliance: Juvenile Facilities
3.1 Definitions Related to Juvenile Facilities
Civil-type juvenile offender. A juvenile offender who has been charged with or adjudicated
for an offense that is civil in nature. Examples include noncriminal traffic violations and
noncriminal fish and game violations.
Federal Ward. A juvenile who is in the custody of the federal government. Such juveniles
would include undocumented immigrant youth and those youth in the custody of the Bureau of
Indian Affairs.
Nonoffender. A nonoffender is a juvenile who is subject to the jurisdiction of the juvenile
court, usually under abuse, dependency, or neglect statutes, for reasons other than legally
prohibited conduct of the juvenile. These cases are referred to by many names including
Children in Need of Services (CHINS), Children in Protective Services (CHIPS), and Families in
Need of Services (FINS).
Secure custody. As used to define a detention or correctional facility, this term includes
residential facilities that include construction features designed to physically restrict the
movements and activities of persons in custody, such as locked rooms and buildings, fences, or
other physical structures.
Secure juvenile detention center or correctional facility. A secure juvenile detention or
correctional facility is any secure public or private facility used for the lawful custody of accused
or adjudicated juvenile offenders.
Staff secure facility. A staff secure facility is as a residential facility which does not include
construction features designed to physically restrict the movements and activities of juveniles
who are in custody therein; which may establish reasonable rules restricting entrance to and
egress from the facility; and in which the movements and activities of individual juvenile
residents may, for treatment purposes, be restricted or subject to control through the use of
intensive staff supervision.
Facilities that contain doors with delayed egress devices that have received written approval by
the authority having jurisdiction over fire codes and/or fire inspections in the area in which the
facility is located are also considered to be staff secure. The egress delay must never exceed the
time delay allowed by the fire code applicable to the area in which the facility is located, and the
maximum time delay allowed must be specified on the written approval. Facilities that contain
20
devices that exceed a 30-second delay are always considered secure, even though local code may
allow for a longer time delay.11
Status offender. A status offender is a juvenile who has been charged with or adjudicated for
conduct that would not, under the law of the jurisdiction in which the offense was committed, be
a crime if committed by an adult. The following are examples of status offenses:
Truancy.
Running away.
Underage alcohol offenses. These offenses are considered to be status offenses, even though
state law or local ordinance may classify them as delinquent offenses.12
3.2 Compliance With Deinstitutionalization of Status
Offenders
Secure Holding of Status Offenders—Prohibitions and Exceptions
The JJDP Act provides that status offenders, nonoffenders, and civil-type offenders not be
detained or confined in secure detention or correctional facilities. There may be rare situations,
however, where short-term secure custody of accused status offenders may be necessary. For
example, detention in a juvenile facility for a brief period of time prior to formal juvenile court
action for investigative purposes, for identification purposes, or for the purpose of allowing
return to the juvenile’s parents or guardian may be necessary. Detention for a brief period of
time under juvenile court authority may also be necessary in order to arrange for appropriate
shelter care placement. Therefore, OJJDP regulations allow a facility to hold an accused status
11
This is the maximum delay allowed by the National Fire Protection Association, as published
in the Life Safety Code Handbook. It should be noted that for these devices to be used, the Life Safety
Code Handbook dictates that other requirements must be met, such as the existence of an “approved
supervised automatic fire detection system or approved supervised automatic sprinkler system.”
12
With regard to underage alcohol offenses, in many states it is a criminal offense for any person
18 to 20 years old to consume or possess alcoholic beverages. Because this time period is limited (i.e., 3
years) and the age at which this is not a criminal offense is very broad (i.e., after the age of 21), these
alcohol offenses must be classified as status offenses if committed by a juvenile. However, criminal
alcohol offenses that apply to all adults (e.g., public intoxication) may be classified as delinquent
offenses.
21
offender in a secure juvenile detention facility for up to 24 hours, exclusive of weekends and
legal holidays, prior to an initial court appearance and for an additional 24 hours, exclusive of
weekends and legal holidays, immediately following an initial court appearance. The weekend
begins when juvenile court closes on Friday and reopens the following Monday.
Status offenders who fail to appear for court hearings remain status offenders; they cannot be
upgraded to delinquent offenders for their failure to appear. Similarly, status offenders who
violate probation (by committing another status offense) remain status offenders.
Status offenders cannot be securely detained after adjudication unless all of the conditions of the
VCO Exception (see below) are met. Juveniles who have committed a violation of the Youth
Handgun Safety Act or are held in accordance with the Interstate Compact on Juveniles as
enacted by the state are excluded from the DSO requirement in total.
Youth Handgun Safety Act Exception
The Youth Handgun Safety Act (18 U. S. C. 922(x)) prohibits possession of a handgun by a
minor under the age of 18. There are exceptions to this Act such as using a handgun in a gun
safety course or hunting under the supervision of an adult. Because the Youth Handgun Safety
Act applies only to juvenile offenders and handgun possession, in most cases, would not be a
crime if committed by an adult, it fits the definition of a status offense. However, the Violent
Crime Control and Law Enforcement Act of 1994, Subtitle B, Youth Handgun Safety, amended
the JJDP Act to provide that juveniles who violate United States Code, Title 18, Section 922(x),
or a similar state law can be placed in secure detention or secure correctional facilities without
violating the DSO requirement. Because of this exception to the JJDP Act, violations of the
Youth Handgun Safety Act or a similar state law can be considered either status offenses
punishable by detention or confinement or delinquent offenses. The number of these offenders
held securely must be reported to OJJDP in the state’s annual monitoring report.
Out-of-State Runaways
Out-of-state runaways securely held beyond 24 hours solely for the purpose of being returned to
proper custody in another state in response to a want, warrant, or request from a jurisdiction in
the other state or pursuant to a court order must be reported as violations of the
deinstitutionalization of status offenders requirement. Juveniles held pursuant to the Interstate
Compact on Juveniles enacted by the state are excluded from the DSO requirements in total.
Federal Wards
The JJDP Act states that “ juveniles . . . who are aliens shall not be placed in secure detention
facilities or secure correctional facilities.” Federal wards held beyond 24 hours in state and local
secure detention and correctional facilities pursuant to a written contract or agreement with a
federal agency and for the specific purpose of affecting a jurisdictional transfer or appearance as
22
a material witness or for return to their lawful residence or country of citizenship must be
reported as violations of the deinstitutionalization of status offenders requirement.13
Exception for Status Offenders Who Violate a Valid Court Order (VCO
Exception)
The VCO Exception provides that adjudicated status offenders found to have violated a valid
court order may be securely detained in a juvenile detention or correctional facility. The JJDP
Act of 2002 defines a valid court order as a court order given by a juvenile court judge to a
juvenile who was brought before the court and made subject to such order; and who received,
before the issuance of the order, the full due process rights guaranteed to such juvenile by the
Constitution of the United States.14 It is important to note that status offenders who violate a
valid court order cannot be held securely in an adult jail or lockup for any length of time.
Because the JJDP Act does not provide substantive legal authority to a state, where state
legislation currently prohibits the secure confinement of status offenders who violate a valid
court order, legislative amendment is required if a state wanted to have the ability to confine
status offenders who violate valid court orders.
For the VCO Exception to apply, the Act requires that the following actions occur when a status
offender is taken into custody for violating a valid court order:
An appropriate public agency must be promptly notified that the juvenile is held in custody
for violating the order;
Not later than 24 hours during which the juvenile is held, an authorized representative of the
agency shall interview, in person, the juvenile; and
Not later than 48 hours during which the juvenile is held:
The representative must submit an assessment to the court that issued the order
regarding the immediate needs of the juvenile; and
The court shall conduct a hearing to determine whether there is reasonable cause to
believe that the juvenile violated the order and the appropriate placement of the
juvenile pending disposition of the alleged violation.
In the event the court orders the juvenile detained pending the disposition, the disposition
hearing should be held as soon as possible while still allowing reasonable time for the court to
13
Because state and local governments do not have jurisdiction over these juveniles,
OJJDP will exclude these violations if their presence creates a noncompliance rate in excess of
29. 4 per 100,000 juvenile population.
14
42 U.S.C. 5603 Sec 103 (16).
23
obtain additional information to enable it to make a disposition in the best interest of the status
offender.
Although some states’ common laws or statutes allow the courts to use traditional contempt
power, failure to appear, or probation violation to upgrade a status offender to a delinquent
offender, a status offender held for violating a valid court order remains a status offender, and
the VCO violation process must be followed, unless the violation itself is a delinquent act as
defined under federal law.
To use the VCO Exception, states must submit as part of their annual compliance monitoring
report, evidence that state law allows for the secure confinement of status offenders who violate
a VCO. Moreover, to demonstrate compliance with the process governing the VCO Exception,
the state must report in its annual compliance monitoring report the total number of status
offenders held in any secure detention or correctional facility pursuant to the VCO Exception.
The state must have a system in place to verify whether court orders used to hold status
offenders in juvenile detention centers comply with the conditions listed above. At a minimum,
the state must randomly verify 10 percent of all adjudicated status offenders held securely
because of violating a valid court order; violations of the VCO process, where found, must be
projected accordingly. If a system is not in place to monitor compliance with the conditions and
process governing the VCO Exception, all uses of the VCO Exception must be reported as
violations of DSO.
3.3 Compliance With Jail Removal
The Jail Removal core requirement does not apply to stand-alone juvenile detention and
correctional facilities. Juvenile facilities collocated with adult facilities, however, must be
monitored to ensure compliance with the collocated facility criteria outlined in Section 4 of this
guidance manual.
A collocated facility is a juvenile facility that is located in the same building as an adult jail or
lockup or is part of a related complex of buildings located on the same grounds as an adult jail or
lockup. A complex of buildings is considered related when it shares physical features such as
walls and fences, or services beyond mechanical services (heating, air conditioning, water, and
sewer). Juvenile facilities collocated with adult facilities are considered adult jails or lockups
absent compliance with the collocated facility criteria (see section 4).
3.4 Compliance With Separation
Accused or adjudicated delinquent offenders, status offenders, and nonoffenders cannot have
contact with adult inmates, including adult inmate trustees. Contact is defined to include any
physical or sustained sight and/or sound contact. Sight contact is defined as clear visual contact
between adult inmates and juveniles within close proximity to each other. Sound contact is
defined as direct oral communication between adult inmates and juvenile offenders.
24
It is important to note that the separation requirement prohibits a state from transferring adult
offenders to a juvenile correctional authority for placement in a juvenile facility. For example, an
adult could not be transferred to a juvenile detention center to alleviate overcrowding in an adult
facility.
Adult inmate trustees who perform maintenance or other duties at a juvenile detention center or
juvenile training school must be sight and sound separated from the juvenile detainees at all
times. Separation may be accomplished architecturally or through policies and procedures such
as time phasing the use of an area to prohibit simultaneous use by juveniles and adults. The state
must monitor all juvenile detention facilities and juvenile training schools for separation.
Transferred, Waived, or Certified Youth
A juvenile who has been transferred, waived, or certified is otherwise under the jurisdiction of a
criminal court may be detained or confined in a juvenile correctional facility or juvenile
detention center with other juveniles who are under the jurisdiction of the juvenile court. This is
not a violation of the separation requirement because the youth is not a juvenile “alleged to be or
found to be delinquent” (he or she has been charged with a criminal, not a delinquent act) and
the youth is not an “adult inmate.” Once the youth reaches the state’s age of majority, he or she
must be separated from the juvenile population within 6 months.
Adults Under the Jurisdiction of the Juvenile Court
An adult held for a delinquency proceeding can be held in a juvenile detention center or a
juvenile training school. For example, if a 17-year-old juvenile committed a burglary and was
charged with this delinquent offense at age 18, he or she could be held in a juvenile detention
center. This does not violate the separation requirement because the 18-year-old adult has neither
been “convicted of a criminal charge offense nor awaiting trial on criminal charges.”
3.5 Facility Reporting Requirements
States must compile and report compliance monitoring data annually to the Administrator of
OJJDP. Section 223(a)(14) of the JJDP Act requires that states have an adequate system of
monitoring for compliance with the core protections. As part of this system, facilities must
collect data on juveniles held and report the data to the state. In addition, the state must conduct
regular onsite visits to monitor the all adult jails and lockups and verify reported data. As part of
an adequate system of compliance monitoring states must inspect 100 percent of all juvenile
detention and correctional facilities every 3 years. A minimum of 10 percent of all facilities
must be visited annually.
To demonstrate compliance with the JJDP Act, secure juvenile detention or correctional facilities
must report the following:
25
Dates covered by the reporting period, as designated by the state monitoring agency.
The total number of nonoffenders held in a secure detention or correctional facility for any
length of time.
The total number of accused status offenders, out-of-state runaways not held pursuant to the
Interstate Compact for Juveniles and federal wards, held securely for longer than 24 hours
(exclusive of weekends and legal holidays) prior to an initial court appearance and for an
additional 24 hours (exclusive of weekends and legal holidays) immediately following an
initial court appearance. Exclude those juveniles held pursuant to the VCO Exclusion
provision, pursuant to the Youth Handgun Safety Act or a similar state law, or the Interstate
Compact on Juveniles adopted by the state.
The total number of adjudicated status offenders and nonoffenders, including out-of-state
runaways not held pursuant to the Interstate Compact for Juveniles and federal wards, held
securely for any length of time, excluding those held pursuant to the VCO Exception
provision or pursuant to the Youth Handgun Safety Act or the Interstate Compact on
Juveniles adopted by the state
The total number of juveniles not separated from adult criminal offenders.
The state monitoring agency is also required to collect the following:
The total number of juvenile offenders held pursuant to the Youth Handgun Safety
Act.
Total number of federal wards.
26
Summary of the JJDP Act:
Juvenile Detention or Correctional Facilities
Secure Juvenile Detention or Juvenile Correctional Facility
Nonoffenders
Accused juvenile status
offender
Secure hold limited to 24 hours prior to and 24 hours after an initial court
appearance (excluding weekends and holidays).
status offender
Status offender
accused of violating a
valid court order
Juvenile must be interviewed by an appropriate public agency within 24
hours of being placed in secure custody. The court must receive an
assessment from the public agency and the juvenile must have a
reasonable cause hearing within 48 hours of being placed in secure
custody. Time limits exclude weekends and holidays.
Status offender
adjudicated for violating
a valid court order
Accused juvenile
delinquent
delinquent
criminal court and
charged with a
misdemeanor
criminal court and
convicted of a
misdemeanor
May be held securely until the state’s age of majority; must be sight and
sound separated from juvenile delinquents within 6 months of reaching the
criminal court and
charged with or
convicted of a felony
May be held securely until the state’s age of majority; must be sight and
sound separated from juvenile delinquents within 6 months of reaching the
Adult accused of or
convicted of a criminal
offense
27
Section 4
Monitoring for Compliance: Other Facilities
4.1 Collocated Facilities
Classifying Facilities
States must determine whether or not a facility in which juveniles are detained or confined is an
adult jail, adult lockup, or a secure juvenile detention center or correctional facility. The JJDP
Act prohibits the secure custody of juveniles in adult jails and lockups.15 Juvenile facilities
collocated with adult facilities are considered adult jails or lockups absent compliance with the
four criteria listed in this section. A facility adhering to the four criteria would qualify as a
separate secure juvenile detention center or correctional facility for the purpose of monitoring for
compliance with DSO, jail removal, and separation.
Definitions of Collocated Facilities and Related Complex of Buildings
Collocated facilities. Collocated facilities are facilities that are located in the same building
or are part of a related complex of buildings located on the same grounds.
Related complex of buildings. A related complex of buildings is two or more buildings that
share physical features, such as walls and fences, or services beyond mechanical services
(heating, air conditioning, water, and sewer); or the specialized services such as medical care,
food service, laundry, maintenance, engineering services, etc.
Criteria for Collocated Facilities
Each of the following four criteria must be met in order to ensure the requisite separateness of a
juvenile detention facility that is collocated with an adult jail or lockup:
The facility must ensure separation between juveniles and adults such that there could be no
sustained sight or sound contact between juveniles and adult inmates in the facility.
Separation can be achieved architecturally or through time phasing of common use
nonresidential areas; and
15
See section 2 for exceptions.
28
The facility must have separate juvenile and adult program areas, including recreation,
education, vocation, counseling, dining, sleeping, and general living activities. There must be
an independent and comprehensive operational plan for the juvenile detention facility that
provides for a full range of separate program services. No program activities may be shared
by juveniles and adult inmates. Time phasing of common use nonresidential areas is
permissible to conduct program activities. Equipment and other resources may be used by
both populations subject to security concerns;
If the state will use the same staff to serve both the adult and juvenile populations, there is in
effect in the state a policy that requires individuals who work with both juveniles and adult
inmates to be trained and certified to work with juveniles; and
In states that have established standards or licensing requirements for juvenile detention
facilities, the juvenile facility must meet the standards (on the same basis as a free-standing
juvenile detention center) and be licensed as appropriate. If there are no state standards or
licensing requirements, OJJDP encourages states to establish administrative requirements
that authorize the state to review the facility’s physical plant, staffing patterns, and programs
in order to approve the collocated facility based on prevailing national juvenile detention
standards.
The state must determine that the four criteria are fully met. It is incumbent upon the state to
make the determination through an onsite facility (or full construction and operations plan)
review and, through the exercise of its oversight responsibility, to ensure that the separate
character of the juvenile detention facility is maintained by continuing to fully meet the four
criteria set forth above.
Collocated juvenile detention facilities approved by the state and concurred with by OJJDP
before December 10, 1996, may be reviewed against the regulatory criteria and OJJDP policies
in effect at the time of the initial approval and concurrence or against the regulatory criteria set
forth in this section. It is up to the state monitoring agency to determine which criteria will be
used. Facilities approved on or after December 10, 1996, must be reviewed against the criteria
set forth in this section. A monitoring checklist has been developed by OJJDP for each of the
criteria. The use of either checklist is optional and may be found in appendix I.
Annual Onsite Review Requirement
An annual onsite review of the facility must be conducted by the compliance monitoring staff
person(s) employed by the Designated State Agency (DSA) of the JJDP Act Formula Grants
Program. The purpose of the annual review is to determine if compliance with the criteria listed
above is being maintained.
29
Collocated Facility Reporting Requirements
States must report annually to the Administrator of OJJDP on the results of monitoring for DSO,
jail removal, and separation. In addition, the state must conduct annual onsite visits to monitor
collocated facilities for the JJDP Act and to verify reported data.
Juvenile facilities collocated with adult facilities are considered adult jails or lockups absent
compliance with the four criteria listed in this section and would follow the same reporting
requirements as listed for adult jails and lockups in section 2. A collocated juvenile facility
adhering to the four criteria would qualify as a separate secure juvenile detention center or
correctional facility and would follow the reporting requirements listed for juvenile facilities in
section 3.
4.2 Court Holding Facilities
A court holding facility is a secure facility, other than an adult jail or lockup, that is used to
temporarily detain persons immediately before or after detention hearings or other court
proceedings. Court holding facilities, where they do not detain individuals overnight (i.e., are not
residential) and are not used for punitive purposes or other purposes unrelated to a court
appearance, are not considered adult jails or lockups.
A status offender or delinquent offender placed in a court holding facility is exempt from the
deinstitutionalization requirement if the facility meets the criteria listed in the definition above.
Facilities, however, remain subject to the separation requirements of the JJDP Act. The
separation requirements pertain to status offenders, nonoffenders, and alleged or adjudicated
delinquent offenders.
It is important to note that court holding facilities impose an inherent or practical time limitation
in that juveniles must be brought to and removed from the facility during the same judicial day.
The state must monitor court holding facilities to ensure they continue to meet the definition and
purpose listed above. Court holding facilities must be inspected at a rate of 100 percent every 3
years. A minimum of 10 percent of facilities must be visited annually.
A court holding facility that does not meet the definition and purpose listed above must be
monitored as an adult jail or lockup.
30
4.3 Adult Prisons
Status Offenders
The JJDP Act prohibits the placement of status offenders and nonoffenders in secure detention
facilities or secure correctional facilities. Holding status offenders or nonoffenders in an adult
prison16 would be an immediate violation of the JJDP Act.
Delinquent Offenders
adults....” Therefore, the JJDP Act limits the facilities from which juveniles must be removed to
adult jails or lockups. The requirement does not apply to adult prisons. Therefore, holding a
delinquent offender in an adult prison is not a violation of the jail removal requirement.
It is important to note that the JJDP Act states that “juveniles alleged to be or found to be
delinquent shall not be detained or confined in any institution in which they have contact with
adult persons incarcerated because they have been convicted of a crime or awaiting trial on
criminal charges.” Therefore, complete separation must be provided between juvenile delinquent
offenders and adult inmates.
Transferred, Waived, or Certified Juveniles
adults....” Therefore, it is not a violation of jail removal to hold a juvenile in an adult prison if
that juvenile has been formally transferred or direct filed into criminal court and criminal felony
or misdemeanor charges have been filed.
Furthermore, a juvenile who has been transferred, waived, or direct filed or is otherwise under
the jurisdiction of a criminal court does not have to be separated from adult criminal offenders
pursuant to the separation requirements of the JJDP Act. This is due to the fact that such a
juvenile is not alleged to be or found to be delinquent (i.e., the juvenile is under a criminal
proceeding, not a delinquency proceeding).
4.4 Nonsecure Community-Based Programs and Facilities
Nonsecure, community-based programs or facilities are exempt for the purposes of reporting
data for compliance with DSO, jail removal, and separation. The core protections only apply to
secure facilities. For example, a nonsecure residential substance abuse treatment program could
16
The term “adult prison” includes any institution used for the postconviction confinement of
adult criminal offenders, including work camps and secure facilities located in the community.
31
include both juvenile delinquent or status offenders and adult offenders who are under a sentence
for the conviction of a crime.
Pursuant to Section 223(a)(14) of the JJDP Act, States must monitor nonsecure facilities to
verify their nonsecure status. If the facility’s status were to change and become secure, the
facility must be monitored as an adult jail or lockup, juvenile detention or correctional facility, or
other secure institution if it holds both juveniles and adult offenders.
4.5 Secure Mental Health Treatment Units
A juvenile committed to a mental health facility under a separate state law governing civil
commitment of individuals for mental health treatment or evaluation would be considered
outside the class of juvenile status offenders and nonoffenders. For monitoring purposes, this
distinction does not permit placement of status offenders or nonoffenders in a secure mental
health facility where the court is exercising its juvenile status offender or nonoffender
jurisdiction. The state must ensure that juveniles alleged to be or found to be juvenile status
offenders or nonoffenders are not committed under state mental health laws to circumvent the
intent of DSO.
There are no restrictions to placing delinquent offenders in a mental health treatment unit. The
separation requirement does not apply if the juvenile and adults are held in a mental health
facility solely because of a mental health civil commitment.
32
Summary of the JJDP Act: Other Facilities
Shelter,
Group
Home, or
Other
Nonsecure
or Staff
Secure
Facility
Adult Prison
Court
Holding
Facility
(must meet
definition)
Accused juvenile
status offender or
nonoffender
No
restrictions
on holding.
Secure
holding
prohibited.
No
restrictions if
separated
from adults.
status offender
No
restrictions
on holding.
Secure
holding
prohibited.
No
restrictions if
separated
from adults.
Status offender
accused of violating
a valid court order
No
restrictions
on holding.
Secure
holding
prohibited.
No
restrictions if
separated
from adults.
Status offender
adjudicated for
violating a valid
court order
No
restrictions
on holding.
Secure
holding
prohibited.
No
restrictions if
separated
from adults.
Accused juvenile
delinquent
No
restrictions
on holding.
No
restrictions if
separated
from adults.
No
restrictions if
separated
from adults.
delinquent
No
restrictions
on holding.
No
restrictions if
separated
from adults.
No
restrictions if
separated
from adults.
Juvenile transferred
to criminal court
and charged with a
misdemeanor
No
restrictions
on holding.
No
restrictions
on holding.
No
restrictions
on holding.
to criminal court
and convicted of a
misdemeanor
No
restrictions
on holding.
No
restrictions
on holding.
No
restrictions
on holding.
to criminal court
and charged with or
convicted of a
felony
No
restrictions
on holding.
No
restrictions
on holding.
No
restrictions
on holding.
Adult accused of or
convicted of a
criminal offense
No
restrictions
on holding.
No
restrictions
on holding.
No
restrictions
on holding.
Secure
Mental
Health
Facility
Status
offenders or
nonoffenders
may not be
placed in a
secure
mental health
facility where
the court is
exercising its
juvenile
status
offender or
nonoffender
jurisdiction.
There are no
restrictions
on holding
any juvenile
in a secure
mental health
facility if the
juvenile is
held there for
the purpose
of a mental
health civil
commitment.
The
separation
requirement
does not
apply if the
juvenile and
adults are
held in a
mental health
facility due
solely to a
mental health
civil
commitment.
Collocated
Juvenile
Facility
A collocated
juvenile
facility
adhering to
the collocated
facility criteria
qualifies as a
separate
secure
juvenile
detention
center or
correctional
facility and
has the same
holding
restrictions as
secure
juvenile
facilities.
Absent
compliance
with the
collocated
facility
criteria,
juvenile
facilities
collocated
with adult
facilities are
considered
adult jails or
lockups and
have the
same holding
restrictions as
adult jails and
lockups.
33
Section 5
State Monitoring of Facilities
5.1 Adequate System of Monitoring for Compliance
As required in Section 223(a)(14) States participating in the JJDP Act must provide for an
adequate system of monitoring jails, detention facilities, correctional facilities, and nonsecure
facilities to ensure that the core protections are met. The state must also provide annual reporting
of the results of such monitoring to the Administrator of OJJDP. Although OJJDP holds the DSA
implementing the Formula Grants program responsible for the monitoring effort and the validity
of the monitoring report, the DSA may contract with a public or private agency to perform the
monitoring function. If selecting another agency, the state must identify in its monitoring plan
which agency has been authorized and/or contracted with to assist in the monitoring functions.
Those states participating in the JJDP Act must submit a compliance monitoring plan to OJJDP
annually, as part of the Formula Grants Application. As part of an adequate system of
monitoring facilities, the state must describe in its plan, how the following tasks that comprise an
adequate system for compliance monitoring are achieved. Further, the plan must note the
specific agency and employee and/or contractor who completes the task.
Policies and Procedures. A state must document, in writing that it has policies and
procedures governing the implementation of an adequate compliance monitoring.
Monitoring Authority. A state must document and describe the authority under which the
DSA tasked with compliance monitoring enters facilities to inspect and collect data from
all facilities in the monitoring universe.
Monitoring Timetable. States must keep an annual calendar demonstrating when and
where compliance monitoring will occur.
Violation Procedures. A state’s monitoring system must describe procedures established
for receiving, investigating, and reporting complaints of violations of the DSO, Jail
Removal, and Separation core requirements. This should include both legislative and
administrative procedures and sanctions.
Barriers and Strategies. States must provide a written description of the barriers faced in
implementing an adequate system of compliance monitoring; this written description
must include strategies employed to overcome those barriers
Definitions. States may have different definitions for juvenile and criminal justice terms
than those provided in the JJDP Act. States must document and ensure that all state
34
definitions that differ from federal definitions, have been identified and will be addressed
in the monitoring process. Specifically, states must certify that where state definitions
differ from federal definitions, in the monitoring process, federal definitions will be used
in the monitoring process.
Identification of the monitoring universe. This refers to the identification of all facilities in
the state that might hold juveniles pursuant to public authority. Every facility that has this
potential, regardless of the purpose for housing juveniles, comes under the purview of the
monitoring requirements. This also includes those facilities owned or operated by public and
private agencies.
Classification of the monitoring universe. This is the classification of all facilities in the state
that might hold juveniles pursuant to public authority. Classification must determine the
facility type (e.g. juvenile detention or correctional facility, adult correctional institution, jail,
lockup, or other type of secure or nonsecure facility). Moreover, classification also includes
determining whether a facility is public or private, residential or nonresidential, and whether
the population is juvenile only, adult only or juvenile and adult. While facilities can
successfully self-report their own classification, the final classification of a facility must be
verified by the DSA while on-site.
Inspection of facilities. Inspection of facilities is necessary to ensure an accurate assessment
of each facility’s classification, to verify the adequacy of sight and sound separation where
both juvenile and adults inmates are present, and to ensure appropriate record keeping. 100
percent of all facilities that have public authority to detain or confine juveniles must be
inspected, on-site, once every 3 years. A minimum of 10 percent of all such facilities must
be inspected annually. Inspections must include:
An on-site review of the physical accommodations to determine whether it is a secure
or nonsecure facility and in secure facilities whether adequate sight and sound
separation between juvenile and adult inmates exists.
An on-site review of the record keeping system, including verification of selfreported data provided by a facility, to determine whether data are valid and
maintained in a manner allowing a state to determine compliance with DSO, jail
removal, and separation.
35
Data collection and data verification. Data collection and on-site data verification are
required to determine whether facilities in the state are in compliance with the applicable
requirements of DSO, jail removal, and separation. Reporting periods for all three core
requirements must concur (i.e. the same months of data must be used for each of the core
requirements). OJJDP recognizes three data collection periods with the resulting due dates:
calendar year, due June 30; Federal Fiscal Year, due March 31; and State Fiscal Year, due
December 31. The length of the reporting period should be 12 months, but in no case less
than 6 months. If reporting 6 months of data, the data must be projected for a full year in a
statistically valid manner. If the data is self-reported by the facility or is collected and
reported by an agency other than the state agency receiving federal grant funds, the plan must
describe a statistically valid procedure used to verify the reported data. The DSA must
verify, on-site, self-reported data or data provided by another agency. On-site data
verification must involve the review of data self-reported by a facility, including a review of
the facility’s admissions records and/or booking logs.
5.2 Native American Tribes
Monitoring Facilities on Native American Reservations
The sovereign authority of Native American tribes with regard to civil and criminal jurisdiction
over acts committed on a reservation varies from state to state and, in some states, from tribe to
tribe within a state. Where a Native American tribe exercises jurisdiction over juvenile offenders
through an established tribal court and operates correctional institutions for juvenile and adult
offenders and these activities are not subject to state law (i.e., the functions are performed under
the sovereign authority of the tribal entity),the state cannot mandate tribal compliance with the
core protections. Therefore, where the state has no authority to regulate or control the law
enforcement activities of a sovereign Native American tribal reservation, facilities that are
located on such reservations are not required to be included in the inspection cycle.
Grants to Native American Tribes
During the 1988 reauthorization, the JJDP Act was amended to require that a portion of each
state’s Formula Grant award be made available to fund programs of tribes that perform law
enforcement functions. While the Act specifies a minimum level of funding, states may provide
any amount in excess of the minimum amount required to accomplish the objectives of the JJDP
Act within the tribe. Native American tribes that receive Formula Grant funds as part of the
Native American Pass-Through requirement of the JJDP Act must comply with the core
protections, and facilities on the reservation must be monitored by the state. In addition, if the
tribe wishes to establish eligibility for Community Prevention Grant funds, the tribe must be in
compliance with the core protections and facilities on the reservation must be monitored.
36
5.3 Out-of-State Juveniles
Where there is interstate placement of juveniles and a juvenile is held in a secure facility in
violation of the JJDP Act, the receiving state must include the violation in its annual monitoring
report. Although only the receiving state must report the violation, it should be noted that neither
state is meeting the intent of the core protections. In addition, a unit of local government cannot
establish eligibility for Title V Community Prevention Grant funds if the jurisdiction is in
compliance because of sending juveniles to another jurisdiction in violation of the JJDP Act.
Juveniles may be held in accordance with the Interstate Compact on Juveniles as enacted by the
state.
37
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38
Section 6
Reporting Requirements
6.1 Annual Compliance Monitoring Report Requirement
In order to receive its full fiscal year allocation of Formula Grants program funds, a state must
first demonstrate compliance with the DSO, jail removal, separation, and disproportionate
minority confinement core protections. Compliance with the first three core protections is
demonstrated through data provided in the state’s annual Compliance Monitoring Report, of
which all data must be analyzed and verified prior to submission. Compliance with
disproportionate minority confinement is determined by information provided in the state’s
Comprehensive 3-Year Plan and subsequent 3-Year Plan Updates.
Eligibility for Formula Grant awards is determined prior to the Fiscal Year for which the award
is being made based on data in the compliance monitoring report submitted. For example, in
most cases, eligibility for FY 2006 Formula Grants was based on States’ 2003 Compliance
Monitoring Reports. This timeframe provides a State that has identified a compliance problem
with sufficient time to request technical assistance, develop a corrective action plan, and take the
necessary steps to provide OJJDP with more current data demonstrating compliance, thereby
maximizing the state’s opportunity to receive its full fiscal year allocation.
6.2 Deadline To Submit Annual Report
OJJDP’s Formula Grant Regulation requires states to submit compliance information annually.
The reporting period should provide 12 months of data but shall not provide less than 6 months
of data. Recognizing that states use various data collection procedures, OJJDP has historically
recognized a variety of data collection periods including calendar year, the federal fiscal year, or
the state fiscal year. The data provided for each of the three core requirements must be from the
same time period (e.g. a State may not use the calendar year reporting period for DSO, the
Federal fiscal year for Jail Removal and the State fiscal year for Separation; rather one data
collection period must be used for all three core requirements).
Due dates are thus as follows: Calendar year – due June 30; Federal Fiscal Year – due March
31; and State Fiscal year – due December 31.
States that fail to adhere to the requirement for the timely submission of this data face a
restriction on the drawdown of funds for active Formula Grants program awards.
39
6.3 Reporting Requirements
Deinstitutionalization of Status Offenders
To demonstrate the extent of compliance with DSO core requirement, the annual report must
include, at a minimum, the following information for the current reporting period:
Dates covered by the current reporting period;
Total number of public and private secure detention and correctional facilities, including the
total number reporting data, and the total number inspected onsite by the DSA;
Total number of adult jails and lockups, including the total number reporting data, and the
total number inspected by the DSA onsite;
The total number of accused status offenders and nonoffenders, including out-of-state
runaways and federal wards, held in any secure detention or correctional facility for longer
than 24 hours (not including weekends or holidays), excluding those held pursuant to the
VCO Exclusion or pursuant to the Youth Handgun Safety Act or a similar state law. A
juvenile who violates this statute, or a similar State law, is excepted from the
deinstitutionalization of status offenders requirement;
The total number of accused status offenders (including valid court order violators, out-ofstate runaways, and federal wards, but excluding Youth Handgun Safety Act violators) and
nonoffenders securely detained in any adult jail, lockup, or nonapproved collocated facility
for any length of time;
The total number of adjudicated status offenders and nonoffenders, including out-of-state
runaways and federal wards, held for any length of time in a secure detention or correctional
facility, excluding those held pursuant to the VCO Exclusion or pursuant to the Youth
Handgun Safety Act or pursuant to the Interstate Compact on Juveniles;
The total number of status offenders held in any secure detention or correctional facility
pursuant to the VCO Exclusion; and
The total number of juvenile offenders held pursuant to the Youth Handgun Safety Act.
Jail Removal
To demonstrate the extent of compliance with the jail removal core requirement, the report must
40
The total number of adult jails in the state, including the total number reporting data and the
number inspected onsite;
The total number of adult lockups in the state, including the total number reporting data and
the number inspected onsite;
The total number of adult jails holding juveniles during the past 12 months;
The total number of adult lockups holding juveniles during the past 12 months;
The total number of accused juvenile17 criminal-type offenders held securely in adult jails,
lockups, and unapproved collocated facilities in excess of 6 hours (including those held
pursuant to the rural exception);
The total number of accused juvenile criminal-type offenders held securely in adult jails,
lockups, and unapproved collocated facilities for less than 6 hours for purposes other than
identification, investigation, processing, release to parent(s),transfer to court, or transfer to a
juvenile facility following initial custody;
The total number of alleged or adjudicated juvenile criminal-type offenders held securely in
adult jails or lockups and unapproved collocated facilities in excess of 6 hours prior to or
following a court appearance or for any length of time not related to a court appearance;
The total number of accused and adjudicated status offenders (including valid court order
violators) and nonoffenders held securely in adult jails, lockups and unapproved collocated
facilities for any length of time;
The total number of adult jails, lockups, and unapproved collocated facilities in areas
meeting the rural exception, including a list of such facilities and the county or jurisdiction in
which each is located;
17
For the purposes of reporting on the adult jail and lockup removal and separation
requirements, only holding those juveniles who are under the age of the state age of majority and
who are held in violation of the JJDP Act are considered violations. In most states, this age is 18.
However, 13 states have a lower age of majority. For example, for reporting on this item, if a
state’s age of majority is 16, only those juveniles under the age of 16 that were held in an adult
jail or lockup in excess of 6 hours would be reported as violations. Because a 17-year-old in such
a state can still be a nonoffender or commit status offenses, this exception does not apply to the
DSO requirement, and these individuals should be included in “the total number of accused and
adjudicated status offenders (including valid court order violators) and nonoffenders held
securely in adult jails, lockups and unapproved collocated facilities for any length of time” even
though the person may be above the state’s age of majority.
41
The total number of juveniles accused of a criminal-type offense who were held in excess of
6 hours but for less than 48 hours in adult jails, lockups, and unapproved collocated facilities
pursuant to the rural exception;
48 hours but not for more than an additional 48 hours in adult jails, lockups, and unapproved
collocated facilities pursuant to the rural exception due to conditions of distance or lack of
ground transportation; and
48 hours, but not more than an additional 24 hours after the time such conditions as adverse
weather allow for reasonably safe travel, in adult jails, lockups and unapproved collocated
facilities in areas meeting the rural exception.
Separation
To demonstrate the extent of compliance with the separation core requirement, the report must
The total number of facilities used to detain or confine both juvenile offenders and adult
criminal offenders during the past 12 months and the number inspected onsite;
The total number of facilities used for secure detention and confinement of both juvenile
offenders and adult criminal offenders which did not provide sight and sound separation;
The total number of juvenile offenders and nonoffenders not separated from adult criminal
offenders in facilities used for the secure detention and confinement of both juveniles and
adults;
The total number of state-approved juvenile detention centers located within the same
building or on the same grounds as an adult jail or lockup, including a list of such facilities;
The total number of juvenile detention centers located within the same building or on the
same grounds as an adult jail or lockup that have not been approved by the state, including a
list of such facilities; and.
The total number of juveniles detained in collocated facilities not approved by the State who
were not sight and sound separated from adult inmates.
42
6.4 Technical Assistance Reporting Tool
OJJDP has developed a technical assistance tool to help States submit annual compliance
monitoring reports. This technical assistance tool is a template to use with the Microsoft Excel
spreadsheet program. This template requests all of the information to be submitted to fulfill the
reporting requirements listed above. The form may be downloaded at the OJJDP compliance
monitoring Web site at http://www.ojjdp.ncjrs.org/compliance.
States that are considering using this form should note the following:
The electronic form is a template only—to use it the state must first have the Microsoft Excel
program, version 97 or greater.
Although it is provided as an electronic template, the form should not be submitted
electronically. It must be printed and then sent to OJJDP with all of the requested
attachments.
The state should check for template updates and enhancements before completing its annual
monitoring report. New versions of the template can be found at the OJJDP Web site on
compliance monitoring at http://www.ojjdp.ncjrs.org/compliance.
6.5 Monitoring Report Exemption
States that have been determined by the OJJDP Administrator to have achieved full compliance
with DSO, jail removal, and separation requirements and that wish to be exempted from the
annual monitoring report requirements must submit a written request to the OJJDP Administrator
that demonstrates the following:
The state provides for an adequate system of monitoring jails, law enforcement lockups, and
detention facilities, to enable an annual determination of state compliance with Section
223(a)(11),(12), and (13) of the JJDP Act;
State legislation has been enacted which conforms to the requirements of Section
223(a)(11),(12), and (13) of the JJDP Act; and
The enforcement of the legislation is statutorily or administratively prescribed, specifically
providing that:
Authority for enforcement of the statute is assigned;
Timeframes for monitoring compliance with the statute are specified; and
Adequate procedures are set forth for enforcement of the statute and the imposition of
sanctions for violations.
43
6.6 Annual Report to the Governor and Legislature
The JJDP Act requires the State Advisory Group in each state participating in the Formula
Grants program to submit annual recommendations to the state’s Governor and legislature
regarding the state’s compliance with the core requirements. This report is an excellent
opportunity for the state agency and the State Advisory Group to make recommendations and
report how the state is addressing the core requirements.
44
Section 7
Standards for Demonstrating Compliance
7.1 Grant Funds Affected by Compliance
If a state demonstrates compliance with the core protections, it is eligible for Formula Grant
funds. Moreover, units of local government and federally recognized tribes that are in
compliance with the core protections are eligible for Title V Community Prevention Grant funds.
Formula Grant Funds
The state must demonstrate the extent to which each of the four core protections are met. If the
state fails to demonstrate the required level of compliance by the end of the fiscal year for which
funds are allocated, the state’s Formula Grants allotment will be reduced by 20 percent for each
such failure. Further, the noncompliant state must agree to expend 50 percent of the state’s
allocation for that year to achieve compliance with the core requirement(s) with which it is not in
compliance. If the OJJDP Administrator makes a discretionary determination that the state has
substantially complied with the requirement(s) for which there is noncompliance and that the
state has made, through appropriate executive or legislative action, an unequivocal commitment
to achieving full compliance within a reasonable time, then the restriction on expenditures will
not apply. In order for such a determination to be made, the state must demonstrate that it has
diligently carried out the plan approved by OJJDP, demonstrated significant progress toward full
compliance, submitted a plan based on an assessment of current barriers to DMC, and provided
an assurance that added resources will be expended, from Formula Grants or other fund sources,
to achieve compliance.
Where a state’s allocation is reduced, the amount available for planning and administration and
the required pass-through allocation, other than the State Advisory Group set-aside, will be
reduced because they are based on the reduced allocation.
Community Prevention Grant Funds—State Eligibility
A state out of compliance with the JJDP Act may still be awarded Community Prevention Grants
if there are units of general local government eligible to receive grant awards based upon their
compliance with the core protections.
45
Community Prevention Grant Funds—Unit of Local Government
Eligibility
For a unit of general local government or federally recognized tribe to be eligible to apply to the
state for Title V Community Prevention Grant funds, the unit must be certified by the State
Advisory Group as in compliance with the four core protections. The specific unit of general
local government that is seeking certification must demonstrate compliance with the four core
protections. Therefore, a State Advisory Group is not allowed to certify a city’s compliance
based on the overall compliance status of the county. The unit of general local government must
obtain this certification prior to applying for an award of funds. In determining eligibility, the
State Advisory Group must certify only those units of general local government that are within
the de minimis parameters provided in sections 7.3, 7.4, and 7.5 and base this determination on
the locality’s most current census data.
The compliance certification applies to all facilities operated by or contracted by the unit of
general local government. This certification is not limited to a specific catchment area within the
boundaries of the unit of general local government. Therefore, the certification must also include
any facility that the unit of general local government operates, contracts for, or uses inside or
outside its boundaries. However, the certification does not apply to facilities operated or
controlled by other governmental units within the local governmental boundaries that are not
used by the local government.
In order for a unit of general local government to be in compliance with the disproportionate
minority contact (DMC) core requirement, the State Advisory Group must certify that the unit of
general local government is cooperating in data gathering and analysis to determine if DMC
exists. If DMC is found to exist within the boundaries or jurisdiction of the unit of general local
government, the unit must be making an adequate effort toward addressing, or assisting the state
to address, this issue. The level of cooperation and commitment must be satisfactory to support
efforts to achieve the goals of the DMC requirement.
After awards have been made to units of local government, the state must ensure that these
communities continue to comply with the four core protections. Title V awards to units of local
government must be in 12-month increments for periods of up to 3 years. Continuation funding
for each of the 12-month increments is based on the unit of local government’s satisfactory
performance and continued compliance with the four core protections. As part of its Community
Prevention Grants program, the state must have a plan which will identify and discontinue all
Community Prevention Grants funding to units of local government that fall out of compliance.
Completed compliance certification forms should be kept on file for all Community Prevention
Grants subawards.
46
7.2 Deadline for Establishing Eligibility for Formula Grant
Funds
The deadline date for a state to demonstrate eligibility for its annual allocation of Formula Grant
funds is March 31 or 60 days after OJJDP officially notifies states of their Formula Grant
allocation, whichever is later. Demonstrating eligibility includes submitting a complete grant
application by this deadline and submitting a monitoring report and other documentation that
establishes compliance with the core protections of the JJDP Act. If a state cannot meet the
deadline for good cause, it may apply for an extension to OJJDP in writing by the application
due date. The extension will not be continued past the end of the fiscal year for which the state
has applied for funds. The funds for which the state could not demonstrate eligibility will not be
held past the end of the fiscal year for which the state applied for funds, nor will the entire award
be held past the end of the fiscal year for which the state applied for funds in order to provide
additional time to establish eligibility.
7.3 Demonstrating Compliance: Deinstitutionalization of
Status Offenders
Full compliance with DSO is achieved when a state has removed 100 percent of status offenders
and nonoffenders from secure detention and correctional facilities. The legal concept of de
minimis, meaning “the law cares not for small things,” is generally applied where small,
insignificant or infinitesimal matters are at issue. OJJDP has developed de minimis standards for
States that have not removed 100 percent of status offenders and nonoffenders from secure
detention and correctional facilities. If states that have not achieved 100 percent can demonstrate
full compliance with de minimis exceptions pursuant to the OJJDP policy criteria,18 the state will
be determined to be in compliance with DSO. The OJJDP policy establishes three criteria to be
applied in making a determination of whether a state has demonstrated full compliance with the
deinstitutionalization of status offenders requirement. The three criteria, A, B, and C, are listed
below.
Criterion A: The extent of noncompliance is insignificant or of slight
consequence in terms of the total juvenile population in the state.
In applying Criterion A, the following four standards19 will be used:
18
Federal Register 46, no.6 (January 9,1981):2567–2568 (see appendix C).
19
To establish these numerical standards, in 1980 OJJDP calculated the average rate of DSO
violations in eight states (i.e., two states from each of the four Bureau of Census regions). The eight states
selected by OJJDP in 1980 were those having the smallest institutionalization rate per 100,000 population
and which also had an adequate system of monitoring for compliance. By applying this procedure and
utilizing the information provided in the eight states’ most recently submitted monitoring reports, OJJDP
determined that the eight states’ average annual rate was 17.6 incidences of status offenders and
nonoffenders held per 100,000 population under 18. In computing the standard deviation from the mean
47
States which have an institutionalization rate less than 5.8 per 100,000 population will be
considered to be in full compliance with the de minimis exceptions and will not be required
to address Criteria B and C.
States whose rate falls between 5.8 and 17.6 per 100,000 population will be eligible for a
finding of full compliance with de minimis exceptions if they adequately meet Criteria B and
C.
States whose rate is above 17.6 but does not exceed 29.4 per 100,000 will be eligible for a
finding of full compliance with de minimis exceptions only if they fully satisfy Criteria B
and C.
States which have a placement rate in excess of 29.4 per 100,000 population are
presumptively ineligible for a finding of full compliance with de minimis exceptions because
any rate above that level is considered to represent an excessive and significant level of
status offenders and nonoffenders held in juvenile detention or correctional facilities.
OJJDP will consider requests for a finding of compliance from such states where the state
demonstrates exceptional circumstances which account for the excessive rate. Exceptional
circumstances are limited to situations where, but for the exceptional circumstance, the state’s
institutionalization rate would be within the 29.4 rate established above.
The following will be recognized for consideration as exceptional circumstances:
Federal wards held under federal statutory authority in a secure state or local detention
facility for the sole purpose of effecting a jurisdictional transfer, appearance as a material
witness, or for return to their lawful residence or country of citizenship; and
A state has recently enacted changes in state law which have gone into effect and which the
state demonstrates can be expected to have a substantial, significant, and positive impact on
the state’s achieving full compliance with the deinstitutionalization requirement within a
reasonable time.
In order to make a determination that a state has demonstrated exceptional circumstances under
the first two items above, the state must have developed a separate and specific plan under
Criterion C which addresses the problem in a manner that will eliminate the noncompliant
instances within a reasonable time.
of 17.6, it was determined that a rate of 5.8 per 100,000 was one standard deviation below the mean and
29.4 was one standard deviation above the mean.
48
It is of critical importance that all states seeking a finding of full compliance with de minimis
exceptions demonstrate progress toward full compliance annually in order to be eligible for a
finding of full compliance with de minimis exceptions.
States may provide additional information that they deem relevant in determining the extent to
which the number of noncompliant incidences is insignificant or of slight consequence. Factors
such as local practice, available resources, or organizational structure of local government will
not be considered relevant by OJJDP in making this determination.
Criterion B: The extent to which the instances of noncompliance were
in apparent violation of state law or established executive or judicial
policy.
The following information must be provided in response to Criterion B and must be sufficient to
make a determination as to whether the instances of noncompliance with DSO as reported in the
state’s monitoring report were in apparent violation of, or departures from, state law or
established executive or judicial policy. OJJDP will consider this criterion to be satisfied by
those states that demonstrate that all or substantially all of the instances of noncompliance were
in apparent violation of, or departures from, state law or established executive or judicial policy.
This is because such instances of noncompliance can more readily be eliminated by legal or
other enforcement processes. The existence of such law or policy is also an indicator of the
commitment of the state to the deinstitutionalization requirement and to achieving and
maintaining future 100 percent compliance. Therefore, information should also be included on
any newly established law or policy which can reasonably be expected to reduce the state’s rate
of institutionalization in the future.
A brief description of the noncompliant incidents must be provided which includes a
statement of the circumstances surrounding the instances of noncompliance. (For example:
Of 15 status offenders/nonoffenders held in juvenile detention or correctional facilities
during the 12-month period for state X, 3 were accused status offenders held in jail in excess
of 24 hours, 6 were accused status offenders held in detention facilities in excess of 24 hours,
2 were adjudicated status offenders held in a juvenile correctional facility, 3 were accused
status offenders held in excess of 24 hours in a diagnostic evaluation facility, and 1 was an
adjudicated status offender placed in a mental health facility pursuant to the court’s status
offenders jurisdiction.) Do not use actual names of juveniles.
Describe whether the instances of noncompliance were in apparent violation of state law or
established executive or judicial policy. A statement should be made for each circumstance
discussed in item 1 above. A copy of the pertinent/applicable law or established policy
should be attached. (For example: The three accused status offenders were held in apparent
violation of a state law which does not permit the placement of status offenders in jail under
any circumstances. Attachment “X” is a copy of this law. The six status offenders held in
juvenile detention were placed there pursuant to a disruptive behavior clause in our statute
which allows status offenders to be placed in juvenile detention facilities for a period of up to
49
72 hours if their behavior in a shelter care facility warrants secure placement. Attachment
“X” is a copy of this statute. A similar statement must be provided for each circumstance.)
Criterion C: The extent to which an acceptable plan has been
developed which is designed to eliminate the noncompliant incidents
within a reasonable time, where the instances of noncompliance
either (1) indicate a pattern or practice, or (2) appear to be consistent
with state law or established executive or judicial policy, or both.
If the state determines that the instances of noncompliance (1) do not indicate a pattern or
practice, and (2) are inconsistent with and in apparent violation of state law or established
executive or judicial policy, then the state must explain the basis for this determination. In such
case no plan would be required as part of the request for a finding of full compliance.
The following must be addressed as elements of an acceptable plan for the elimination of
noncompliant incidents that will result in the modification or enforcement of state law or
executive or judicial policy to ensure consistency between the State’s practices and the JJDP Act
deinstitutionalization requirements.
If the instances of noncompliance are sanctioned by or consistent with state law or executive
or judicial policy, then the plan must detail a strategy to modify the law or policy to prohibit
noncompliant placement so that it is consistent with the federal deinstitutionalization
requirement.
If the instances of noncompliance are in apparent violation of state law or established
executive or judicial policy, but amount to or constitute a pattern or practice rather than
isolated instances of noncompliance, the plan must detail a strategy which will be employed
to rapidly identify violations and ensure the prompt enforcement of applicable state law or
executive or judicial policy.
The plan must be targeted specifically to the agencies, courts, or facilities responsible for the
placement of status offenders and nonoffenders in compliance with DSO. It must include a
specific strategy to eliminate instances of noncompliance through statutory reform, changes
in facility policy and procedure, modification of court policy and practice, or other
appropriate means.
If OJJDP makes a finding that a state is in full compliance with de minimis exceptions based, in
part, upon the submission of an acceptable plan under Criteria C above, the state will be required
to include the plan as part of its current or next submitted formula grant plan as appropriate.
OJJDP will measure the state’s success in implementing the plan by comparison of the data in
the next monitoring report indicating the extent to which noncompliant incidences have been
eliminated.
50
Determinations of full compliance status will be made annually by OJJDP following the
submission of the annual monitoring report. Any state reporting less than 100 percent
compliance in any annual monitoring report would, therefore, be required to follow the above
procedures in requesting a finding of full compliance with de minimis exceptions.
7.4 Demonstrating Compliance: Jail Removal
Full compliance is achieved when a state demonstrates that the last submitted monitoring report,
covering 12 months of actual data, demonstrates that no juveniles were held in adult jails or
lockups in circumstances that were in violation of jail removal. As with the deinstitutionalization
of status offenders requirement, OJJDP has developed de minimis standards for states that have
not achieved 100 percent removal of juveniles from adult jails and lockups. Full compliance with
de minimis exceptions is achieved when a state demonstrates that it has met the numerical or
substantive de minimis standards below:
Numerical de Minimis Standard
To comply with this standard the state must demonstrate that each of the following two
requirements has been met:
The incidents of noncompliance reported in the state’s last submitted monitoring report do
not exceed an annual rate of 9 per 100,000 juvenile population of the state;20 and
An acceptable plan has been developed to eliminate the noncompliant incidents through the
enactment or enforcement of state law, rule, or statewide executive or judicial policy,
education, the provision of alternatives, or other effective means.
Any state whose prior full compliance status is based on having met the numerical de minimis
standard must annually demonstrate, in its request for a finding of full compliance with de
minimis exceptions, continued and meaningful progress toward achieving full (100 percent)
compliance in order to maintain eligibility for a continued finding of full compliance with de
minimis exceptions.
20
Under an exception to the numerical de minimis standard, when the annual rate for a state
exceeds 9 incidents of noncompliance per 100,000 juvenile population, the state will be considered
ineligible for a finding of full compliance with de minimis exceptions under the numerical de minimis
standard unless the state has recently enacted changes in state law which have gone into effect and which
the state demonstrates can reasonably be expected to have a substantial, significant, and positive impact
on the state’s achieving full (100 percent) compliance or full compliance with de minimis exceptions by
the end of the monitoring period immediately following the monitoring period under consideration.
51
Substantive de Minimis Standard
To comply with this standard the state must demonstrate that each of the following requirements
has been met:
State law, court rule, or other statewide executive or judicial policy clearly prohibits the
detention or confinement of all juveniles in circumstances that would be in violation of jail
removal;
All instances of noncompliance reported in the last submitted monitoring report were in
violation of or departures from the state law, rule, or policy referred to in the preceding item;
The instances of noncompliance do not indicate a pattern or practice but rather constitute
isolated instances;
Existing mechanisms for the enforcement of the State law, rule, or policy referred to in the
first item of this list are such that the instances of noncompliance are unlikely to recur in the
future; and
An acceptable plan has been developed to eliminate the noncompliant incidents and to
monitor the existing mechanism referred to in the preceding item.
Determinations of full compliance and full compliance with de minimis exceptions are made
annually by OJJDP following submission of the annual monitoring report. Any state reporting
less than full (100 percent) compliance in its annual monitoring report may request a finding of
full compliance with the substantive or numerical de minimis exceptions. The request may be
submitted in conjunction with the monitoring report, or as soon thereafter as all information
required for a determination is available, or it may be included in the annual State plan and
application for the state’s Formula Grant award.
7.5 Demonstrating Compliance: Separation
Compliance with Section 223(a)(12) has been achieved when a state can demonstrate that:
The last submitted monitoring report, covering a full 12 months of data, demonstrates that no
juveniles were incarcerated in circumstances that were in violation of Section 223(a)(12);or
The instances of noncompliance reported in the last submitted monitoring report do not
indicate a pattern or practice but rather constitute isolated instances; and
Where all instances of noncompliance reported were in violation of or departure from
state law, rule, or policy that clearly prohibits the incarceration of all juvenile
offenders in circumstances that would be in violation of Section 223(a)(12), existing
enforcement mechanisms are such that the instances of noncompliance are unlikely to
recur in the future; or
An acceptable plan has been developed to eliminate the noncompliant incidents.
52
Summary of Standards for Demonstrating Compliance
Deinstitutionalization of Status Offenders
Rate per
100,000
juveniles
Criteria for Compliance
0.0
The state has demonstrated full compliance.
0.1 to 5.7
The state has demonstrated full compliance with de minimis exceptions.
5.8 to 17.6
The state is eligible for a finding of compliance with de minimis exceptions if it
adequately meets two criteria: (a) noncompliant incidents violated state law, and (b)
an acceptable plan has been developed that is designed to eliminate the
noncompliant incidents.
17.7 to 29.4
The state is eligible for a finding of compliance with de minimis exceptions if it fully
satisfies two criteria: (a) noncompliant incidents violated state law, and (b) an
acceptable plan has been developed that is designed to eliminate the noncompliant
incidents.
29.5 and
greater
The state is presumptively ineligible for a finding of full compliance with de minimis
exceptions because any rate above this level is considered to represent an
excessive and significant level of status offenders and nonoffenders held in juvenile
detention or correctional facilities.
Jail Removal
Rate per
100,000
Juveniles
0.0
0.1 to 9.0
The state is eligible for the numerical de minimis exception if the state has developed
an acceptable plan to eliminate the noncompliant incidents through the enactment or
enforcement of state law, rule, or statewide executive or judicial policy, education,
the provision of alternatives, or other effective means.
9.1 and greater
The State is eligible for the substantive de minimis exception if the state meets five
criteria: (a) there are recently enacted changes in state law that are expected to have
a significant impact on the state’s achieving full compliance; (b) all instances of
noncompliance were in violation of state law; (c) the instances of noncompliance do
not indicate a pattern or practice but rather constitute isolated instances; (d) there
are existing mechanisms to effectively enforce state law; and (e) an acceptable plan
has been developed to eliminate the noncompliant incidents.
Separation
Number of
Violations
0
1 and greater
The state is eligible for a finding of compliance if the instances of noncompliance do
not indicate a pattern or practice but rather constitute isolated instances and one of
the following criteria is satisfied: (a) instances of noncompliance were in violation of
state law and existing enforcement mechanisms are such that the instances of
noncompliance are unlikely to recur in the future, or (b) an acceptable plan has been
developed to eliminate the noncompliant incidents.
53
Section 8
Definitions
Adult inmate. An adult inmate is an individual who has reached the age of full criminal
responsibility under applicable state law and has been arrested and is in custody for or awaiting
trial on a criminal charge, or is convicted of a criminal offense (42 U.S.C. 5603 Sec 103 (26)).
Adult jail. A locked facility, administered by state, county, or local law enforcement and
correctional agencies, the purpose of which is to detain adults charged with violating criminal
law, pending trial. Also considered as adult jails are those facilities used to hold convicted adult
criminal offenders sentenced for less than 1 year (28 CFR 31.304(m)).
Adult lockup. Similar to an adult jail except that an adult lockup is generally a municipal or
police facility of a temporary nature that does not hold persons after they have been formally
charged (28 CFR 31.304(n)).
Civil-type juvenile offender. A juvenile offender who has been charged with or adjudicated
for an offense that is civil in nature. Examples include noncriminal traffic violations and
noncriminal fish and game violations.
Collocated facilities. Collocated facilities are facilities that are located in the same building,
or are part of a related complex of buildings located on the same grounds. (42 U.S.C. 5603 Sec
103 (28)).
Contact (DMC). See Disproportionate Minority Contact.
Contact (sight and sound). Any physical or sustained sight and sound contact between
juvenile offenders in a secure custody status and incarcerated adults, including adult inmate
trustees. Sight contact is defined as clear visual contact between incarcerated adults and
juveniles within close proximity to each other. Sound contact is defined as direct oral
communication between incarcerated adults and juvenile offenders (28 CFR 31.303(d)).
Court holding facility. A court holding facility is a secure, nonresidential facility, that is not
an adult jail or lockup, that is used to temporarily detain persons immediately before or after
court proceedings.
Criminal-type juvenile offender. A juvenile offender who has been charged with or
adjudicated for conduct that would, under the law of the jurisdiction in which the offense was
committed, be a crime if committed by an adult (28 CFR 31.304(g)).
54
Delayed egress device. A device that precludes the use of exits for a predetermined period of
time.
Disproportionate Minority Contact (DMC). As amended by the JJDP Act of 2002, the
concept of disproportionate minority confinement has been broadened to address the
disproportionate numbers of minority youth who come into contact with the juvenile justice
system at any point. The 2002 Act requires states to “address juvenile delinquency prevention
efforts and system improvement efforts designed to reduce, without establishing or requiring
numerical standards or quotas, the disproportionate number of juvenile members of the minority
groups, who come into contact with the juvenile justice system.” (42 U.S.C. 5633 Sec.
223(a)(22))
Facility. A place, an institution, a building or part thereof, set of buildings, or an area whether
or not enclosing a building or set of buildings which is used for the lawful custody and treatment
of juveniles and may be owned and/or operated by public and private agencies (28 CFR
31.304(c)).
Federal Ward. A Juvenile that is in the custody of the federal government.
Juvenile offender. An individual subject to the exercise of juvenile court jurisdiction for
purposes of adjudication and treatment based on age and offense limitations as defined by State
law, i.e., a criminal-type offender or a status offender (28 CFR 31.304(f)).
Juvenile who is accused of having committed an offense. A juvenile with respect to
whom a petition has been filed in the juvenile court or other action has occurred alleging that
such juvenile is a juvenile offender, i.e., a criminal-type offender or a status offender, and no
final adjudication has been made by the juvenile court (28 CFR 31.304(d)).
Juvenile who has been adjudicated as having committed an offense. A juvenile
with respect to whom the juvenile court has determined that such juvenile is a juvenile offender,
i.e., a criminal-type offender or a status offender (28 CFR 31.304(e)).
Lawful custody. The exercise of care, supervision, and control over a juvenile offender or
nonoffender pursuant to the provisions of the law or of a judicial order or decree (28 CFR
31.304(j)).
Nonoffender. A juvenile who is subject to the jurisdiction of the juvenile court, usually under
abuse, dependency, or neglect statutes, for reasons other than legally prohibited conduct of the
juvenile (28 CFR 31.304(i)). These cases are referred to by many names including Children in
Need of Services (CHINS), Children in Protective Services (CHIPS), and Families in Need of
Services (FINS).
Nonsecure custody. A juvenile may be in law enforcement custody and, therefore, not free to
leave or depart from the presence of a law enforcement officer or at liberty to leave the premises
of a law enforcement facility, but not be in a secure detention or confinement status. The
55
November 2, 1988, Federal Register announcement, Policy Guidance for Nonsecure Custody of
Juveniles in Adult Jails and Lockups; Notice of Final Policy, states that the following policy
criteria, if satisfied, will constitute nonsecure custody of a juvenile in an adult jail or lockup
facility:
The area(s) where the juvenile is held is an unlocked multipurpose area, such as a lobby,
office, or interrogation room which is not designated, set aside, or used as a secure detention
area or is not part of such an area, or, if a secure area, is used only for processing purposes;
The juvenile is not physically secured to a cuffing rail or other stationary object during the
period of custody in the facility;
The use of the area(s) is limited to providing nonsecure custody only long enough for and for
the purposes of identification, investigation, processing, release to parents, or arranging
transfer to an appropriate juvenile facility or to court;
In no event can the area be designed or intended to be used for residential purposes; and
The juvenile must be under continuous visual supervision by a law enforcement officer or
facility staff during the period of time that he or she is in nonsecure custody.
In addition, a juvenile placed in the following situations would be considered in a nonsecure
status:
If certain criteria are met, a juvenile handcuffed to a nonstationary object: Handcuffing
techniques that do not involve cuffing rails or other stationary objects are considered
nonsecure if the five criteria listed above are adhered to.
If certain criteria are met, a juvenile being processed through a secure booking area: Where a
secure booking area is all that is available, and continuous visual supervision is provided
throughout the booking process, and the juvenile remains in the booking area only long
enough to be photographed and fingerprinted (consistent with state law and/or judicial rules),
the juvenile is not considered to be in a secure detention status. Continued nonsecure custody
for the purposes of interrogation, contacting parents, or arranging an alternative placement
must occur outside the booking area.
A juvenile placed in a secure police car for transportation: The JJDP Act applies to secure
detention facilities and secure correctional facilities, so a juvenile placed in a secure police
car for transportation would be in a nonsecure status.
A juvenile placed in a nonsecure runaway shelter, but prevented from leaving due to staff
restricting access to exits: A facility may be nonsecure if physical restriction of movement or
activity is provided solely through facility staff.
56
Other individual accused of having committed a criminal offense. An individual,
adult or juvenile, who has been charged with committing a criminal offense in a court exercising
criminal jurisdiction (28 U.S.C. 31.304(k)).
Other individual convicted of a criminal offense. An individual, adult or juvenile, who
has been convicted of a criminal offense by a court exercising criminal jurisdiction (28 U.S.C.
31.304(l)).
Reasonable cause hearing. In the context of the VCO Exception, the reasonable cause
hearing (also referred to as a “probable cause hearing” or “preliminary hearing”) is a court
proceeding held by a judge to determine whether there is sufficient cause to believe that a
juvenile status offender accused of violating a valid court order has violated such an order and to
determine the appropriate placement of such juvenile pending disposition of the violation
alleged. (42 U.S.C. 5633 Sec. 223(a)(23)(C)(ii)).
Related complex of buildings. Related complex of buildings means 2 or more buildings that
share physical features such as walls and fences, or services beyond mechanical services
(heating, air conditioning, water and sewer); or the specialized services such as medical care,
food service, laundry, maintenance, engineering services, etc. (42 U.S.C. 5603 Sec 103 (28)).
Residential. Pertains to facilities with the structural and operational capacity to securely detain
juveniles overnight.
Secure custody. As used to define a detention or correctional facility, this term includes
residential facilities that include construction features designed to physically restrict the
movements and activities of persons in custody such as locked rooms and buildings, fences, or
other physical structures. It does not include facilities where physical restriction of movement or
activity is provided solely through facility staff (28 CFR 31.304(b)).
Secure juvenile detention center or correctional facility. A secure juvenile detention or
correctional facility is any secure public or private facility used for the lawful custody of accused
or adjudicated juvenile offenders. Many states use the term “training school” for juvenile
correctional facilities.
Staff secure facility. A staff secure facility may be defined as a residential facility (1) which
does not include construction features designed to physically restrict the movements and
activities of juveniles who are in custody therein; (2) which may establish reasonable rules
restricting entrance to and egress from the facility; and (3) in which the movements and activities
of individual juvenile residents may, for treatment purposes, be restricted or subject to control
through the use of intensive staff supervision.
Status offender. A juvenile offender who has been charged with or adjudicated for conduct
which would not, under the law of the jurisdiction in which the offense was committed, be a
crime if committed by an adult (28 CFR 31.304(h)). The following are examples of status
offenses:
57
Truancy.
Runaway.
Underage alcohol offenses. These offenses are considered status offenses, even though state
or local law may consider them delinquent offenses.
Valid court order. A valid court order is a court order given by a juvenile court judge to a
juvenile who was brought before the court and made subject to the order, and who received,
before the issuance of the order, the full due process rights guaranteed to such juvenile by the
Constitution of the United States. (42 U.S.C. 5603 Section 103(16)).
58
Appendix D
National Organizations’ Policy and Position Papers
Regarding Youth Incarcerated in Adult Facilities
Organization
Page #
The American Bar Association (ABA)
1
The National Association of Counties (NACo)
2
The Parent Teacher Association (PTA)
8
The Association of State Correctional Administrators (ASCA)
9
The Council of Juvenile Correctional Administrators (CJCA)
10
The American Correctional Association (ACA)
11
The American Jail Association (AJA)
16
The Coalition for Juvenile Justice (CJJ)
17
The National Commission on Correctional Healthcare (NCCHC)
19
The American Psychiatric Association (APA)
25
The National Juvenile Detention Association (NJDA)
27
American Public Health Association (APHA)
30
National Association for the Advancement of Colored People (NAACP)
33
International Community Corrections Association (ICCA)
35
American Academy of Pediatrics (AAP)
39
National Association of Social Workers (NASW)
44
United States Conference of Catholic Bishops (USCCB)
46
U.S. Conference of Mayors (USCM)
64
AMERICAN BAR ASSOCIATION
101D (Criminal Justice, Litigation)
Approved as submitted
RESOLVED, That the American Bar Association supports the following principles derived from
the 2001 Report of the Task Force on Youth in the Criminal System of the Criminal Justice
Section, Youth in the Criminal Justice System: Guidelines for Policymakers and Practitioners
concerning youth in the criminal justice system:
1. youth are developmentally different from adults and these differences should be taken
into account;
2. pretrial release or detention decisions regarding youth awaiting trial should reflect their
special characteristics;
3. if detained or incarcerated, youth should be housed in institutions or facilities separate
from adult institutions or facilities at least until they reach the age of eighteen;
4. youth detained or incarcerated should be provided programs which address their
educational, treatment, health, mental, and vocational needs;
5. youth should not be permitted to waive the right to counsel without consultation with a
lawyer and without a full inquiry into the youth's comprehension of the right and their
capacity to make the choice intelligently, voluntarily and understandingly. Stand-by
counsel should be appointed if the right to counsel is voluntarily waived;
6. judge should consider the individual characteristics of the youth during sentencing; and
7. collateral consequences normally attendant to the justice process should not necessarily
apply to all youth arrested for crimes committed before age eighteen; and
FURTHER RESOLVED, That the ABA opposes, in principle, the trend toward processing more
and younger youth as adults in the criminal justice system and urges policymakers at all levels to
take the previously mentioned principles into account in developing and implementing policies
involving youth under the age of eighteen.
Appendix A - Support for Removal of Youth from Adult Facilities
Page 1 of 65
NACO - American County Platform & Resolutions
09-10
encourages the implementation and funding of the
Administration's DNA initiative as part of the funding
for state and local forensic sciences under the
Paul Coverdell National Forensic Science Improvement
Act.
DNA testing is one of several problems facing state
and local crime labs in their efforts to support public
safety. These problem areas vary from region to region
and include backlogs in narcotics cases, fingerprint
examinations, firearms evidence, forensic toxicology
evidence and trace evidence. In order to fully realize the
tremendous potential that crime labs offer to the criminal
justice system to identify the guilty and free the innocent, federal funds for forensic science support are
better invested through the Paul Coverdell National
Forensic Science Improvement Act. This act permits
local agencies to define their particular priority, whether
it is DNA or any other forensic science area, including
the medical examiner-coroner office.
FEDERAL REIMBURSEMENT PROGRAMS
SCAAP - NACo supports full federal reimbursement
of state and local costs of incarcerating undocumented
criminal aliens. SCAAP provides partial reimbursement
to states and counties for the costs associated with the
detention and incarceration of undocumented criminal
aliens. Although it is the federal government's responsibility to protect and secure our nation's borders,
counties incur millions of dollars in un-reimbursed
expenses each year as a result of housing undocumented immigrants that violate state or local laws.
Additionally, it should be noted that counties are responsible for processing and prosecuting illegal aliens,
and, in many cases, must provide medical care and other
services to these individuals. Counties bear a disproportionate share of the criminal justice-related costs
associate with illegal immigration. As a result of having
to house pre-trial and convicted aliens, our counties are
forced to divert funds from other important local programs in areas such as healthcare, social services, and
key public safety-related programs. Counties are concerned that while SCAAP-related costs to local jurisdictions have been rising, the level of reimbursement
provided by the federal government remains grossly
inadequate.
ORGANIZED CRIME
NACo recognizes that any success in combating
10
organized crime will require a greater commitment of
resources and imagination at all levels of government.
Coordination at the local level is essential, with the
necessary legal tools for gathering evidence and the
power to grant witness immunity. Investigations must
be carried out with a broader focus than merely the
prosecution of individual cases.
Investigation—Special grand juries should be
impaneled by the appropriate U. S. District Court
for the sole purpose of investigating organized crime
within its jurisdiction.
Witness Immunity—Federal and state statutes
should be enacted which grant general witness immunity.
Organized Units—State or regional organized crime
intelligence units should be established and their activities coordinated.
JUVENILE JUSTICE AND DELINQUENCY
PREVENTION
1. General Recommendations—Federal justice
grant funds should go directly to counties, with the
following requirement: leadership from all entities working to prevent, reduce and control juvenile crime must
collaborate in the preparation of a comprehensive plan.
Elements of such a plan shall include, but not be limited
to (1) strategies, programs, services and supports
designed to prevent delinquency through provision of
resiliency factors which offset risk factors; (2) strategies, programs, services and supports designed to
intervene early and effectively when delinquent behavior is encountered utilizing the least restrictive
approach; (3) strategies, programs, services and supports which protect the community, hold offenders
accountable to individual victims and the community,
and which remedy the skill and competency deficits of
offenders.
Since 1974, the Juvenile Justice and Delinquency
Prevention Act has been a major catalyst in producing
positive change in the juvenile justice system and in
creating preventive and interventive approaches for
youth. Societal change has heightened concern for a
community’s ability to address the rise in violent juvenile crime at increasingly younger ages. In light of this
trend, NACo proposes that the Juvenile Justice and
Delinquency Prevention Act promote the following
essential principles:
The American County Platform & Resolutions 09-10
Page 2 of 65
• collaborative planning and authority at the local
level;
• all federal monies coming to local communities
shall be distributed through the collaborative
planning process at adequate and sustaining
levels of support;
• core requirements in the Act shall be preserved;
• violent and repeat offenders need to be identified
in order to provide appropriate interventions; and
• encouragement of prevention, education and
treatment strategies for juveniles involved with
illegal substances.
2. Countywide Collaboration—The primary responsibility for ensuring the comprehensive delivery of
services to control and prevent juvenile delinquency
resides with local government. The unique role of
county government in this process—as the primary
provider at the local level in health, social services,
juvenile corrections—provides the organizational framework for constructing a comprehensive strategy to
provide for community protection, offender accountability to victims, and the supports and services necessary to positively change offender behavior. Programs
and services must seek to combine early problem identification and assessment with appropriate and timely
interventions.
Program planning, development and implementation
should involve a wide variety of organizations and
individuals, including public, private and voluntary
sectors to achieve the goals of a comprehensive plan,
and to ensure access by youth to available services.
The Juvenile Justice and Delinquency Prevention Act
of 1974 and, especially, its 1992 Title V Amendment
funding prevention at the local government level provides vital financial and technical assistance to state
and local governments to strengthen the juvenile justice system through collaborative efforts to prevent and
control delinquent behavior. The funds and processes
of the Act, when combined with other federal state,
and resources and mechanisms, can assist in the development of programs and services to assist troubled
youth.
Government Responsibility for Juvenile Programs—
The executive and legislative branches of local government share primary responsibility for the overall planning, regulation, and administration of juvenile programs, delinquency prevention, and youth development services for the community.
Organizational and Planning Capacity—Counties
should develop an organizational planning capacity to
develop and coordinate a full spectrum of youth development and delinquency prevention services and to
ensure accountability for service delivery in their communities. Whole communities including a wide variety
of public, private and volunteer organizations and individuals should be mobilized to be involved in planning
and implementing national strategies to prevent delinquency and to ensure access to services.
Counties should take the lead in structuring interagency partnerships, involving all strata of government, business, education, and the community, to develop comprehensive community based services for
atrisk children and families. Counties should use their
budgetary powers to leverage cooperation and collaboration.
The organizational structure should accommodate
strong local control and should reflect the unique
characteristics of each community. The organizational
structure should provide flexibility to local units of
government and service providers to plan and prioritize
services based on the needs of the individual or family.
Planning and Implementing a Comprehensive
Strategy—The process of planning and implementing
a comprehensive strategy is crucial to the prevention
and control of juvenile delinquency. Counties should
take a leadership role in assuring that the following
essential elements are included:
A. Take a community-wide approach.
B. Create ownership.
C. Reach the diverse groups in the community.
D. Include key elected officials and grassroots
community leaders.
E. Give priority to protective factors that are most
promising in addressing risk.
F. Gain the commitment of all stakeholders to a
long term, sustained effort of rebuilding the
community’s social infrastructure.
The most effective approach is one that increases
resiliency by protecting youth from health and future
jeopardizing risks in all areas that affect youths’ lives
from the time of birth, including the family, school peer
group and community.
Juvenile Justice System—The traditional role of the
juvenile and family court is to treat and rehabilitate the
dependent or wayward minor, using an individualized
approach and tailoring its response to the particular
11
Page 3 of 65
needs of the child and family, with goals of (1) responding to the needs of the troubled youth and their families;
(2) providing due process while recognizing the rights
of the victim; (3) rehabilitating the juvenile offender; (4)
protecting both the juvenile and the public. Juvenile
justice systems must develop a better balance among
individual treatment, accountability to victims and community protections if they are to effectively address
serious, violent and chronic juvenile crime; and keeping
youth from deeper penetration into the juvenile justice
system where appropriate.
Juvenile Court Jurisdiction—The jurisdiction of the
juvenile court should be limited to those acts which if
committed by an adult would constitute a crime and to
dependent and neglect cases.
Continuum of Interventions—An effective juvenile
justice system is one that provides a continuum of
services and interventions combining accountability
and sanctions with increasingly intensive treatment
and rehabilitation. This continuum must be wideranging to fit the offense and include both intervention
and a secure corrections component. The intervention
components include the use of immediate response,
intermediate sanctions such as victim-offender mediation and victim restitution, community service,
intensive supervision, probation and competency development within the least restrictive environment. The
secure corrections components may include but not be
limited to community confinement, state training schools,
ranches and camps.
A. County Strategy for Front End Investment to
Prevent Crime—A decade of cuts in domestic spending has reduced or eliminated many of the services that
have traditionally protected America’s at-risk children
and families.
A decade of massive increases in the construction of
jails and prisons at the state and local level has not
resulted in any significant decrease in the level of crime.
In fact, during this same time, we have witnessed a
dramatic increase in the incidence of violent juvenile
crime.
A number of quantitative studies document the theory
that front-end investment in youth development is the
most effective means to prevent crime.
The National Association of Counties, therefore,
calls for a National Front-End Youth Investment Policy.
We urge Congress and the Administration to work with
12
state and local government in designing and funding
effective prevention and early intervention strategies
for children and families. These include health, shelter,
education and employment.
Counties must develop partnerships with business
and industry, education, private sector volunteer and
human services agencies, and all strata of governments
to plan and deliver a broad range of support supports
and services for at-risk children and families that address the needs of the whole person.
Relevant research on human brain development and
its linkage to the growing threat of violence perpetuated
by children shows that through abuse, neglect, and a
general lack of nurturing, many youthful offenders have
sustained lasting neurological damage that interferes
with their ability to reason, to feel and to regulate their
emotions and behavior.
Moreover, the factors that put children at risk for
developing violent personalities also often relate to
prenatal care and development (including malnutrition,
parental addictions and physical and psychological
trauma) and the lack of “bonding” and development
with strong, positive adult models.
This research has caused a number of counties to
reassess their strategies for preventing crime.
NACo recommends flexibility and federally funded
programs, including crime prevention, Temporary
Assistance for Needy Families (TANF), education and
others to allow counties to design and implement comprehensive countywide strategies to provide a full continuum of services for families and children with special
focus on early prevention prenatal to age three.
Exploited and Missing Children—No one determinant of juvenile crime can be identified, however
research does point to a relationship between child
physical and sexual abuse and neglect and future
emotional and behavioral problems, including criminal
involvement.
NACo supports the Missing Children Act as amended
which established the National Center for Missing &
Exploited Children® (NCMEC).
NCMEC operates a toll-free, 24-hour telephone hotline
for reporting cases of missing children; maintains the
CyberTipline®, a resource for the public to report occurrences of child sexual exploitation; and provides assistance to law-enforcement and the public in the location,
recovery, and prevention of missing and sexually exploited children. NCMEC has developed programs deThe American County Platform & Resolutions 09-10
Page 4 of 65
signed to reach into communities to prevent occurrences of child abduction and sexual exploitation. Counties are urged to make use of its resources.
NACo supports sex offender laws requiring convicted sex offenders to register their addresses with law
enforcement. Recognizing the ambiguity in sex offender
registration and community notification laws and
increased mobility between jurisdictions, NACo further
supports county and statewide efforts for increased
funding of sophisticated measures of tracking sex
offenders, specifically the satellite tracking of
convicted sex offenders. Counties should adopt a
nationally uniform system to prioritize sex offenders
according to dangerousness as well as a nationally
uniform reporting system.
Juvenile Court Jurisdiction—The jurisdiction of the
juvenile court should be limited to those acts which if
committed by an adult would constitute a crime and to
dependent and neglect cases.
Transfer of Juveniles to Adult Court— Current
research confirms that the portion of the brain that
controls and suppresses impulses, and is critical to
good judgment and decision-making, is not fully developed in youth under age 18. Youth have difficulty
thinking of consequences under stress and managing
powerful impulses without adult help. Therefore, they
should not be viewed as acting with the level of moral
culpability that characterizes adult criminal conduct.
Further, 75 percent of youth under the age of 18 sent to
adult facilities will be released by the age of 22. They
likely will have not been held fully accountable for their
actions. These youth will have been denied adequate
education, mental health, drug treatment and employment skills training. In light of these facts, NACo
opposes trying and sentencing youth in adult criminal
court, except in the case of a chronic and violent
offender, and then only at the discretion of a juvenile
court judge.
It is harmful to public safety, as well as young offenders, to confine youth in adult jails, where they are eight
times more likely to commit suicide, five times more likely
to be sexually assaulted, and, upon release, much more
likely to re-offend than youth in juvenile detention.
NACo supports the reform of state laws that inappropriately send far too many youth under the age of 18,
including first-time and non-violent offenders into the
adult criminal justice system.
NACo supports that the decision to transfer a juve-
nile to adult court should be made by a juvenile court
judge or jury.
Unaddressed Mental Health Needs—NACo believes
that children suffering from mental disease require
effective assessment, diagnosis and treatment. NACo
advocates for non-institutional, community and familybased treatment for children with mental illnesses. The
juvenile court system is largely ineffective at identifying—much less treating—mental health problems. Yet,
fifty to seventy-five percent of kids in juvenile detention
facilities have diagnosable mental illnesses. Juvenile
court professionals must use culturally sensitive and
comprehensive assessments, and, whenever viable,
family and community-based treatment interventions to
recognize and treat symptoms of mental illnesses. NACo
also supports continued eligibility of federally funded
health benefits of juveniles arrested and held in pre-trail
detention.
Sexual Abuse and Domestic Violence—Research
indicates that sexual abuse of a child is a risk factor for
later offending by that child. NACo supports efforts to
eliminate both physical and psychological abuse of
children. Juvenile crime places an enormous financial
and social burden on counties. Efforts must be placed
on the prevention of child abuse and neglect, interrupting the cycle of violence. Elected county officials
should use their budgetary powers to leverage interagency cooperation and coordination. Criminal justice,
juvenile justice, public health and social service agencies should be encouraged to design and implement
programs that will better protect children. Coordinated
responses are also necessary to improve measures to
deal with children who have already been victimized.
Gang Violence—The prevention and control of crime,
including gang violence, is at its roots a community
issue. While social disorganization and the presence of
crime and drugs in the neighborhood pose a small risk
of violence when measured on an individual level, both
of these risk factors have a substantially grater effect on
the neighborhood (and community) level[1]. Therefore,
NACo supports efforts that strengthen local
governments in implementing a comprehensive approach to the prevention and control of gang violence.
[1]
Youth Violence—A Report of the Surgeon General
(2001)
Racial Disparities: From the point of arrest to sentencing and confinement, minority youth receive harsher
sanctions than their white counterparts. African Ameri-
13
Page 5 of 65
can youth are six times more likely to be sentenced to a
juvenile facility and nine times more likely to be
sentenced to an adult facility for violent offenses, as
compared with white youth charged with the same
crimes. Latinos are also over represented of the youth
population sentenced to adult prisons.
• Clearly no single policy will result in the eradication
of racism, poverty, and other powerful forces that
contribute to the current racial composition of
detention centers. Detention reform, however,
should seek to eliminate systemic bias so that the
juvenile justice system does not exacerbate or
contribute to the impact of those forces. Detention
reform that effectively addresses over-representation of minorities in secure facilities should accomplish at least two measurable changes: (1) the rate
at which minority youth are detained should decline and (2) the number of minority youth in
detention should decline over time. In order to
achieve these changes juvenile justice professionals should consider the following strategies:
• Develop objective admission screening instruments;
• Create new or enhanced alternatives-to-detention
programs;
• Expedite case processing to reduce lengths of stay;
• Develop new policies and practices for probation
violations, warrents and “awaiting placement”
cases.
Financial assistance to develop these programs and
policies may be available from state juvenile justice
advisory committee formula grant funds. NACo believes that children deserve to be treated fairly, regardless of race and/or ethnicity. NACo urges policy makers
to craft solutions that educate police, officers of the
court and correctional/rehabilitative service providers
to remove racial inequalities from the juvenile justice
system.
Limit Use of Secure Detention: Despite a continual
decline in juvenile offending over the past decade, the
population of youth confined in pre-trial secure detention has steadily grown. Today, an alarmingly high
number of youth with serious emotional, behavioral and
substance abuse issues, and a disproportionately high
number of youth of color, are behind locked doors
awaiting court hearings.
On an average day, more than 27,000 youth are
estimated to reside in locked detention centers—a
14
number that has grown 72 percent since the early 1990s.
It is also estimated that 300,000-600,000 children and
teens cycle through secure detention facilities each
year in the United States. These numbers are especially
poignant when you realize that most are young, nonviolent, relatively minor offenders—some of whom will be
acquitted of all charges—most of whom do not need to
be there at all. NACo calls upon state and local policy
makers, through funding and legislation, to support the
philosophy that youth should be placed in the least
restrictive, appropriate environment and be removed
from secure detention as quickly as possible, taking
public safety into account. NACo also supports continued eligibility of federally funded health benefits of
juveniles arrested and held in pre-trial detention.
Prevention of Victimization—Programs should be
developed which identify victims and potential victims;
educate parents about the importance of maintaining
up-todate records of their children; teach children the
difference between nurturing contact and exploitative
contact and ways to protect themselves; teach parents
about the threat of exploitation; and education children
about the skills they need as a future parent to create an
environment to protect their own children.
The Office of Juvenile Justice and Delinquency
Prevention (OJJDP) should develop crime prevention
materials specifically directed at child abduction, abuse
and sexual exploitation.
Juvenile Detention Facilities and Community
Confinement—Juvenile offenders whose presenting
offense is sufficiently serious or who fail or respond to
intermediate sanctions as evidenced by continued
re-offending may be appropriate for community
confinement in a juvenile detention facility. Offenders
at this level represent the more serious and violent
offenders among the juvenile justice system correctional population.
The concept of community confinement provides
secure confinement in small community-based facilities
that offer intensive treatment and rehabilitation services. These services include individual and group
counseling, educational programs, medical services,
and intensive staff supervision.
Proximity to the community enables direct and regular
family involvement with the treatment process as well as
a phased reentry into the community that draws upon
community resources and services. Counties are urged
to remove juveniles from correctional facilities which
Page 6 of 65
detain accused or adjudicated adults.
Detention Pending Court Disposition—Detention
pending court disposition shall be based on clearly
enunciated standards compatible with this section of
the platform and reduced to a minimum.
Law Enforcement Training—County law enforcement agencies should provide intensive specialized
preparation and training for their personnel in working
with juveniles, as far as possible.
State Subsidies—States should establish subsidy
programs to assist counties in establishing a broad
range of community-based youth development and
diversion programs. Such subsidy programs should be
developed jointly by counties and states.
Education—Education is a vital part of any youth’s
attempt to develop as a contributing member of society.
The education system has a responsibility to assist the
community in the prevention and control of juvenile
delinquency and to provide educational opportunities
for young people who become involved in the juvenile
justice system. These approaches include:
A. Community Education—School authorities, in
collaboration with local government, should make school
facilities available year-round as well as during and
after regular hours, to provide a central location for
youth development activities, the delivery of health
and social services by local agencies, as well as
opportunities for recreational and cultural activities.
B. Education During Detention—Continued
educational services should be provided for juveniles
during detention. Local school districts should assume
financial responsibility for the education of the youth
detained or otherwise under the authority of the
C. Education of the Handicapped—Consistent
with PL 94—142, the juvenile justice system and programs, services, and facilities which provide assistance
to the youth under the authority of the juvenile justice
system should develop and implement procedures which
meet the individual needs of the handicapped.
D. Alternative Education—School agencies and
districts are encouraged to develop and implement
policies and programs which keep delinquents and
other youth in elementary or secondary schools or in
alternative training situations. School agencies and
districts should promote policies which avoid dropouts
and unwarranted and arbitrary suspensions and expulsions, and develop in-house suspension systems.
Adult Responsibility—In so far as adults are responsible for the actions of juveniles, adults will be held
answerable for the illegal actions of for juveniles.
Intergenerational Programs—Working with youth,
the elderly have an opportunity to remain vital and
productive, to mentor, to share their knowledge and
wisdom, to expose hidden talents and to overcome
limitations. Participation in cost effective inter-generational service programs allows our youth to learn confidence, decision making skills, a sense of history, and
a sense of understanding change, and respect.
Intergenerational service programs promote mutual
support across generations and meet essential individual and community needs that are increasingly
lacking. Intergenerational programs are successful
prevention devices for fostering the independence of
the elderly and the positive development of youth.
The National Association of Counties recognizes
the importance of incorporating intergenerational programming in human services planning and recommends
that the concept of intergenerational programming
be woven into all appropriate federal, state and local
initiatives that provide services to children, youth and
the elderly.
National Children’s Memorial Day—The National
Association of Counties urges Congress to support the
goals and ideas of National Children’s Memorial Day as
a way of remembering children who die by violence and
committing to end preventable deaths of children.
America has lost too many children in violent and
preventable deaths. We as a nation need to heighten
awareness, acknowledge needless violence, and
do whatever we can to end preventable deaths of
children.
ALCOHOL AND DRUG ABUSE
A broadly based attack must be carried out by counties to combat the problems of alcoholism and, to an
even greater extent, that of drug abuse, both of which
are mounting at an alarming rate. Programs emphasizing
rehabilitation together with punitive measures for violators of the criminal codes are needed.
Alcohol Treatment—Counties should increase
present efforts to find alternatives to the treatment of
alcoholism within the criminal justice system. Criminal
15
Page 7 of 65
PTA : Article : Position Statement - CHILD SAFETY AND PROTECTION
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Position Statement - CHILD SAFETY AND
PROTECTION
Sign up for The PTA Parent
A founding purpose of National PTA is to promote safety for children
and youth. National PTA urges its members at all levels to monitor,
support, and advocate for laws and programs in the following areas:
Safety
●
Assist in the identification and return of missing or runaway
children.
●
Prevent exploitation of children and unhealthy work environments.
●
Heighten awareness of and help prevent child and youth suicide.
●
●
●
Include safety education in school curriculum and community
programs.
Raise awareness of the need for safe recreational equipment and
facilities, playground safety, protective sports gear, and school bus
safety.
> MORE INFO
Promote compliance with child support laws and orders.
Juvenile Justice
●
●
●
●
●
●
●
Promote initiatives to address racial, ethnic, and socioeconomic
inequities in the juvenile justice system.
Encourage collaboration between law enforcement, the judicial
system, and child welfare agencies.
Promote alternative dispute resolution techniques that provide a
range of possible sanctions.
Prohibit youth who are charged with a serious crime from being
tried in the adult court system unless there has been an opportunity
for a judicial hearing and appeal.
Prohibit the incarceration of youth in adult facilities.
Assist youth leaving the juvenile justice system, and prevent their
return.
Support research and data collection regarding youth offenses.
Violence Prevention
●
●
●
●
Protect children from violence.
Inform the public of the sale, resale, and destruction of weapons
that can cause injury and death.
Raise awareness of gun safety and promote violence education.
Address the dangers associated with gangs, cults, and other violent
behaviors.
This position statement was written to update and combine
resolutions and position statements concerning “Safety and
Protection”. The original resolutions and position statements will be
archived in the Historical Records as reference on this issue.
http://www.pta.org/archive_article_details_1141756521234.html (1 of 2) [2/7/2008 5:05:30 PM]
Page 8 of 65
Association of State Correctional Administrators Resolutions
Resolution #2 - Evaluating the Effects of Incarceration in Adult Facilities on Youthful
Offenders
WHEREAS, the number of "juveniles" adjudicated as adults and housed in adult
correctional facilities has increased over the last decade;
WHEREAS, these persons have diverse psychological profiles, criminal histories, and
behavior styles;
WHEREAS, this population presents unique and costly challenges to correctional
administrators with regard to housing, programming, and mandated services such as
education, welfare services etc.;
WHEREAS, there are limited resources available to correctional agencies for the care
and custody of both juveniles and adults; and the allocation of resources to this
population as opposed to others must be entered into judiciously.
THEREFORE, BE IT RESOLVED THAT:
By virtue of their unique needs and legal circumstances, it is appropriate to qualify
“juveniles," or youthful offenders, as a "special needs" population when they are
admitted to adult corrections agencies, and to house and treat them accordingly.
It is appropriate to classify objectively "juveniles," or youthful offenders according to
criminal history, psychological profile, and any prior institutional behavior.
It is appropriate to provide special programs for these populations based on statutory
requirements and individual needs assessments.
Amended by the Association of State Correctional Administrators - September 22, 2006.
Adopted by the Association of State Correctional Administrators - August 10, 1997.
George M. Camp, Co-Executive Director
Camille G. Camp, Co-Executive Director
Page 2
Page 9 of 65
Position Paper on:
WAIVER AND TRANSFER OF
YOUTHS TO ADULT SYSTEMS
Issue:
•
•
•
There is a growing body of national research that shows young offenders who are transferred into the
adult system are often released back into communities earlier, commit more serious offenses and
commit these offenses with greater frequency than their counterparts who remain in the juvenile
justice system;
Juvenile justice system’s purpose is to enhance public safety, hold youths accountable and develop
competencies through treatment programs to provide positive change in the lives of young offenders
and their families;
The most effective response for the few serious violent offenders whose crimes require sanctions
unavailable in the traditional juvenile justice system is through the implementation of a middle tier
system of accountability-focused, outcome-based programming.
Position:
The Council of Juvenile Correctional Administrators (CJCA) strongly opposes the continuing
expansion of eligibility criteria for the waiver and transfer of youths into the adult correctional
system. These policies have resulted in the placement of hundreds of youths into adult penal facilities
without adequate treatment services as well as exacerbated the problem of disproportionate
numbers of minorities being held in secure confinement.
CJCA recognizes that in certain instances the nature of offenses committed by certain youths
dictates that more severe sanctions be imposed than are traditionally available in the juvenile justice
system. For these cases, waiver to the adult system should be accomplished through a process that
maintains judicial decision-making to determine the appropriateness of transferring young offenders
into the adult correctional system.
CJCA recommends serious and violent young offenders whose crimes require more severe
sanctions be treated in a middle tier of justice that would ensure the youths are sanctioned yet are
still offered an opportunity to reform their behavior. These specialized facilities or units, as
minimum, should have the following:
1. A design and perimeter security that promotes safety and security;
2. Recruitment and retention of highly-qualified professional staff who are well trained in
providing direct services to the population;
3. Special programming and case management to meet the developmental educational,
health, religious, mental health and other special needs of these youthful offenders;
4. Appropriate staff-to-resident ratios to meet special security and programming needs;
5. Classification and screening processes at intake and periodic intervals to ensure that the
specialized facilities or units house only offenders in need of such a specialized
placement based on risk and needs.
For a safer tomorrow, invest in our youths today.
CJCA, 170 Forbes Road, Suite 106, Braintree, MA 02184
(781) 843-2663; Fax: (781) 843-1688
Internet: [email protected]; www.cjca.net
Copyright 2003 - Council of Juvenile Correctional Administrators
Page 10 of 65
AMERICAN CORRECTIONAL ASSOCIATION POLICY
Policies And Resolutions (Public Correctional Policy on Juvenile Justice)
Record Detail
Name
Public Correctional Policy on Juvenile Justice
Type
Policy
Date
Aug. 23, 1984; Jan. 17, 1990; Jan. 10, 1993; Jan. 14,
2002; Jan. 24, 2007
Description
Introduction:
Children and youths have distinct personal and developmental
needs and must be kept separate from adult offenders. The
juvenile justice continuum consists of prevention, diversion,
detention, probation, residential and aftercare programs. The
best interests of the individual youth must be balanced with the
needs of the victim and the community.
Policy Statement:
The juvenile justice system must provide a continuum of
services, programs and facilities that ensure maximum
opportunity for rehabilitation and are consistent with public
safety. These should place a high priority on providing
individualized care and rehabilitative services to juvenile
offenders throughout the juvenile justice system. To implement
this policy, juvenile justice officials and agencies should:
A. Increase public awareness of why it is in their best interest
to promote, support, participate in and fund those programs
that have proven effective in preventing delinquency and
producing healthy, positive, and socially-responsible children
and adolescents;
B. Establish and maintain effective working relationships with
those who can have an impact on the juvenile to achieve the
fullest possible cooperation in making appropriate decisions in
individual cases and in providing and using services and
resources;
C. Provide a range of non-residential and residential programs
and services in the least restrictive manner, consistent with the
needs of individual offenders and the protection of the public;
D. Engage the family whenever practical, appropriate and
therapeutic to the youth, in the development and
implementation of the his or her treatment plan;
E. Use a juvenile classification system to identify the risk and
needs of the juvenile offender, and develop and implement an
individualized treatment plan based on this assessment;
F. Advocate for the separation of status offenders from
adjudicated delinquent offenders in the same facilities;
G. Provide a range of non-secure and secure short-term
detention options pending adjudication;
H. Advocate for the separation of adjudicated from preadjudicated youths in the same housing units;
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Page 11 of 65
Policies And Resolutions (Public Correctional Policy on Juvenile Justice)
I. With the involvement of the youth and prior to release from
custody, develop a transition plan that includes educational and/
or vocational programs for aftercare/reentry and ensure that
these reentry services are available and provided when the
youth returns from residential placement;
J. Establish written policies and procedures that will protect the
rights and safety of the juvenile, the victim and the public in as
balanced a manner as possible;
K. Establish procedures to safeguard the accuracy and use of
juvenile records and support limitations on their use according
to approved national standards, recognizing that the need to
safeguard the privacy and rehabilitative goals of the juvenile
should be balanced with concern for the protection of the
public, including victims;
L. Develop performance outcome measures from which
program effectiveness and system operations can be assessed
and adjusted when needed; and
M. Implement research and evaluation initiatives that will
measure the effectiveness of juvenile justice programs and
disseminate findings to the field.
Page 12 of 65
Policies And Resolutions (Public Correctional Policy on Youthful Offenders Transferred to Adult Criminal Jurisdiction)
Record Detail
Name
Public Correctional Policy on Youthful Offenders
Transferred to Adult Criminal Jurisdiction
Type
Policy
Date
Jan. 20, 1999; Jan. 14, 2004; Jan. 14, 2009
Description
Introduction:
Juveniles have developmental needs that require highly
specialized management and treatment by corrections
professionals; therefore, a separate system of corrections for
juveniles was developed in states across the country many
years ago. While the vast majority of youths are processed
through the juvenile justice system, a growing number of
youths in some states are adjudicated as adults and sentenced
to prison. These individuals are referred to as “youthful
offenders.”
Policy Statement:
The American Correctional Association supports separate
housing and special programming for youths under the age of
majority who are transferred or sentenced to adult criminal
jurisdiction. Therefore, correctional agencies should:
A. Support vesting judicial officers with the decision to try
youths under the age of majority as adults. The decision should
be made after a hearing on the record consistent with due
process protections. Judges should make specific findings of
fact. In jurisdictions that nonetheless allow for prosecutorial or
automatic waiver, certification should be limited to the most
serious crimes of violence;
B. Support the adoption of legislation in each state that
authorizes correctional authorities to place people under the
age of majority who are detained or sentenced as adults in an
appropriate juvenile detention/correctional system or youthful
offender system distinct from the adult system;
C. Support the development of research and technical
assistance programs by the federal government to assist states
in safely and effectively addressing the complex issues and
problems raised by the confinement of youthful offenders who
have committed serious, violent crimes; and expanded
technical assistance to states in which youthful offenders under
the age of majority are confined in adult correctional and
detention facilities;
D. Support the development and use of specialized facilities and
units within juvenile detention/correctional or youthful offender
systems distinct from the adult system. Such specialized
facilities or units should be designed to meet the security risks
and programming needs of those youthful offenders under the
age of majority who are transferred to adult jurisdictions or
who cannot be handled by other facilities or programs within
the juvenile correctional/ detention systems. Included in such
facilities should be the following:
1. A design and perimeter security that promotes safety and
security;
2. The recruitment and retention of highly qualified professional
staff who are well- trained and genuinely interested in providing
direct services and programs to youthful offender populations;
Page 13 of 65
3. Special programming and case management to meet the
developmental, educational, health, religious, mental health
and other special needs of youthful offenders;
4. Appropriate resident/staff ratios to meet the special security
and programming needs of youthful offenders and to manage
living units;
5. Mental health and suicide screening and specialized
counseling for youthful offenders;
6. Screening and classification processes, both at intake and at
regular intervals, to ensure that specialized facilities and/or
units house only youthful offenders in need of such treatment;
7. Structured processes for the timely transmission of written
information regarding a youthful offender’s adjustment,
achievements, and educational and disciplinary records within
the specialized facility or unit for consideration upon transfer of
the offender out of the facility or unit; and
8. Housing units that allow for personal interactions and grouporiented activities.
E. Support, in those jurisdictions that continue to house youths
under the age of majority in adult correctional/ detention
systems, housing them in specialized facilities or units that
have the features set forth above. In addition, the following
requirements should be met:
1. Offenders in the specialized units have no sight or sound
contact with adult offenders in living, program, dining or other
common areas of the facility, and opportunities for any other
sight or sound contact are minimized; any such contact that
does occur is brief and in conformance with any applicable legal
requirements;
2. Youthful offenders under the age of majority are housed in
these specialized prisons or units except:
a. When a violent, predatory youthful offender poses an undue
risk of harm to other youths within the specialized unit or
prison; or
b. When a qualified specialist in the developmental,
programming and other special needs of youthful offenders has
determined that the offender cannot benefit from placement in
the specialized prison or unit.
3. When a youthful offender under the age of majority is placed
in the general population, a written statement specifically
explaining the substantial reasons for the placement is
prepared;
4. Offenders over the age of majority are placed in these
specialized units only when two requirements are met:
a. A qualified specialist in developmental levels and needs has,
after a thorough assessment, determined that an offender’s
developmental and programming needs can best be met
through this specialized placement; and
b. A determination has been made that placement of the
offender in the specialized prison or unit will not jeopardize the
safety of the youthful offenders housed there.
5. When an offender over the age of majority is placed in a
specialized unit or prison for youthful offenders, a written
statement specifically explaining substantial reasons
necessitating the placement is prepared.
F. Support the evaluation and refinement of classification
systems and assessment processes by corrections professionals
to ensure the appropriate placement of offenders in the
specialized facilities or units for youthful offenders under the
age of majority, based on risks and needs;
G. Support the preparation and consideration of fiscal and
correctional impact-assessment statements before the
enactment of legislation that leads to the confinement of youths
under the age of majority in adult correctional facilities; and
H. Support the adoption of legislative, fiscal, regulatory and
other mechanisms that will ensure that adequate resources are
Page 14 of 65
allocated for the specialized facilities and/or units developed for
youthful offenders who cannot safely and effectively be handled
by existing juvenile correctional/detention facilities.
This Public Correctional Policy was ratified by the American
Correctional Association Delegate Assembly at the Winter
Conference in Nashville, Tenn., Jan. 20, 1999. It was reviewed
and amended at the Winter Conference in New Orleans, Jan.
14, 2004. It was reviewed and amended at the Winter
Conference in Kissimmee, Fla., Jan. 14, 2009.
Page 15 of 65
American Jail Association :: About AJA :: Corporate Information
Page 7 of 13
American Jail Association
JUVENILES IN JAILS
The housing of juveniles in the nation's jails has been a problem that jail
officials have tried to deal with across the years with very little success. The
American Jail Association, being the primary voice for the jails of this nation,
presents the following:
WHEREAS, juveniles charged with certain major crimes in most states may
be legally housed in jails,
WHEREAS, juveniles certified to stand trial as an adult in most states may
legally be housed in jails,
WHEREAS, according to law in most states, juveniles must be housed
separately from adult inmates and this may result in costly additional
expenditures for staff and training,
WHEREAS, juveniles, if housed with adult criminals, may fall victim to
homosexual rape and other violence,
WHEREAS, juveniles, while they may meet the requirements to stand trial
as adults, may be found innocent of the crime,
WHEREAS, juveniles housed in adult jails may use the experience to
escalate their criminal standing with peers when returned to society,
WHEREAS, the care and legal requirements of housing juveniles are not a
part of an adult jail facility's responsibilities, and require specially trained
staff and specially designed programming which are not readily available in
an adult facility,
WHEREAS, the American Jail Association is dedicated to the safe, secure
and humane care and treatment of all prisoners in adult jail facilities through
constitutionally managed jails;
THEREFORE BE IT RESOLVED THAT the American Jail Association be
opposed in concept to housing juveniles in any jail unless that facility is
specifically designed for juvenile detention and staffed with specially trained
personnel.
Adopted by the American Jail Association Board of Directors on May 22, 1990. Revised
May 19, 1993.
http://www.aja.org/aja/about/resolutions.shtml
Appendix
A - Support for Removal of Youth from Adult Facilities
2/22/2008
Page
16 of 65
CJJ | Position Papers: Children Detained in Adult Jails
Children Detained in Adult Jails
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Delinquent youth, most of whom are nonviolent offenders,
are in physical and emotional danger in adult jails.
Furthermore, children placed in isolation cells are at high
risk of committing suicide.
Placing offenders under the age of 18 in adult lock-ups
must be avoided and only done if extenuating
circumstances make placement in a juvenile facility
impossible and, then, for six hours or less. In such cases, it
is imperative that juveniles have no physical, visual or
verbal contact with adult inmates.
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Copyright © 2007 by The Coalition for Juvenile Justice
Telephone: 202-467-0864 Fax: 202-887-0738 Email: [email protected]
1710 Rhode Island Ave. NW, 10th Floor, Washington, DC, 20036
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Page 17 of 65
CJJ | Position Papers: Limit Youth Transfers to Adult Criminal Court
Limit Youth Transfers to Adult
Criminal Court
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Directory
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Partnerships
Government Relations
Fact Sheets and
Position Papers
- Fact Sheets
- Position Papers
CJJ opposes trying and sentencing youth in adult criminal
court, except in the rare case of a chronic and violent
offender, and then only at the discretion of, and following
an assessment by, a juvenile court judge. Under no
circumstance does CJJ support sending a child younger
than age 15 into the adult criminal justice system. CJJ also
opposes giving prosecutors the authority to transfer youth
to adult court.
It is harmful to community safety, as well as young
offenders themselves, to sentence youth to adult
jurisdiction. In adult prisons, youth under age 18 are eight
times more likely to commit suicide, five times more likely
to be sexually assaulted, and, upon release, much more
likely to re-offend than youth handled in the juvenile
justice system.
See all positions.
Conferences and
Trainings
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Copyright © 2009 by The Coalition for Juvenile Justice
Telephone: 202-467-0864 Fax: 202-887-0738 Email: [email protected]
1710 Rhode Island Ave. NW, 10th Floor, Washington, DC, 20036
Contact Us | Terms of Service | Privacy Policy | [email protected]
http://juvjustice.org/position_1.html [11/17/2009 1:46:29 PM]
Page 18 of 65
NCCHC | Resources & Links
GO
Position Statements
Health Services to Adolescents in Adult Correctional Facilities
Background
Judicial and correctional authorities have always been challenged with the problem of adolescents
committing crimes. Bolstered by changing public attitudes toward adolescents accused of acts of
violent crime (i.e., murder, rape, drug offenses, robbery, and aggravated assault), states are
lowering the adult age limit that allows adolescents to be tried and sentenced in adult criminal
court. The rise in the number of violent crimes committed by adolescents, political pressures, and
community reaction have resulted in increased placement of adolescents in adult correctional
facilities.
Incarcerating adolescents in adult correctional facilities jeopardizes the long-standing paradigm of
protecting the innocence of youth by incarcerating them separately from adults, maintaining their
confidentiality, providing them with specialized community-based services, and ensuring that they
participate in an individualized justice system. Furthermore, incarcerating adolescents in adult
correctional facilities ignores the fact that the growth and developmental changes that occur in
adolescence are substantially different from those that occur in adults.
Adolescence is a period of rapid physical, nutritional, cognitive, and social growth and
development. These changes are influenced by a variety of factors including genetic, nutritional,
environmental, family, and social experiences. Adolescents are at an increased risk for developing
depressive symptoms and anxiety symptoms. Associated with this can be an increased risk for selfmutilating behavior, suicide attempts (National Coalition of State Juvenile Justice Advisory Groups,
1993), psychotic symptoms, and aggressive behaviors toward others. Confinement in any
correctional facility can have a major impact on the ultimate outcome on this developmental
process. Adult facilities are not able to deal with these and other needs of adolescents, and rarely
are staff in adult facilities trained or prepared to work with the problems unique to adolescents.
Juveniles in adult facilities are five times more likely to be sexually assaulted, twice as likely to be
beaten by staff, and 50 percent more likely to be attacked with a weapon than adolescents in a
juvenile facility (Forst, Fagan, & Scott, 1989). The same studies also indicate a much lower rating
of counseling programs’ efforts to improve family relations and medical care in adult facilities.
Given these facts, it is imperative that correctional programs caring for adolescents be designed
specifically to meet their needs.
Position Statement
The National Commission on Correctional Health Care believes the incarceration of adolescents in
adult correctional facilities is detrimental to the health and developmental well-being of youth. The
Commission realizes, nevertheless, that jurisdictions will adjudicate youths as adults and
incarcerate them in institutions for adults. Therefore, due to the unique health service needs
presented by adolescents in adult correctional facilities, the Commission recommends the
following:
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Page 19 of 65
Recommendations
1. Adolescent health specialists, including medical and mental health professionals, familiar
with correctional health care should be consulted in the development of correctional policies
and procedures dealing with adolescent inmates.
2. Correctional and health staff who are responsible for the supervision and treatment of
adolescents should receive orientation and on-going training regarding the unique health,
developmental and educational needs of youth.
3. Facilities housing adolescents should recognize their vulnerability in an adult setting.
Adolescents should be separated and provided opportunities for appropriate peer
interaction.
4. There should be a mechanism for referral to adolescent medical and mental health
specialists.
5. The Commission advises that the specific developmental and growth needs of an
adolescent population be addressed in a special needs treatment planning process for
inmates as described in the NCCHC jail and prison standards on Special Needs Treatment
Plans.
6. Adolescent prisoners should receive health care and health education in accordance with
the American Medical Association's Guidelines for Adolescent Preventive Services
(GAPS). The NCCHC document, Standards for Health Services in Juvenile Detention and
Confinement Facilities, provides guidelines that also will be of assistance in this regard.
Adopted by the National Commission on Correctional Health Care Board of Directors
May 17, 1998
References
American Medical Association. (1993). Guidelines for adolescent preventive services (GAPS).
Chicago, IL: Author.
Forst, J., Fagan, J., & Scott, B. T. (1989). Youth in prison and training schools: Perceptions and
consequences of the treatment-custody dichotomy. Juvenile and Family Court Journal, 40, 1-4.
National Coalition of State Juvenile Justice Advisory Groups. (1993). Myths and realities: Meeting
the challenge of serious, violent, and chronic juvenile offenders (1992 Annual Report). Washington,
DC: Author.
Office of Juvenile Justice and Delinquency Prevention. (1997). Juvenile justice reform initiatives in
the states: 1994-1996. Washington, DC: Author.
Roush, D. W. (1996). Desktop Guide to good juvenile detention practice. Washington, DC: Office
of Juvenile Justice and Delinquency Prevention.
United States Preventive Services Task Force. (1989). Guide to clinical preventive services.
Baltimore: Williams & Wilkins.
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Accreditation | Education & Conferences | Resources & Links | Buyers Guide
Home | Contact Us | Site Map
http://www.ncchc.org/resources/statements/adolescents.html (2 of 2) [3/21/2008 2:20:23 PM]
Page 20 of 65
Position Statements
Prevention of Juvenile Suicide in Correctional Settings
Introduction
Adolescent suicide in the general population is a national tragedy and a major public health problem (Carmona, 2005).
The suicide rate among people aged 15 to 24 tripled from 2.7 per 100,000 in 1950 to 9.9 per 100,000 in 2001 (Arias,
Anderson, Kung, Murphy, & Kochanek, 2003), and more teenagers die from suicide than from cancer, heart disease,
AIDS, birth defects, stroke, pneumonia and influenza, and chronic lung disease combined (U.S. Public Health Service,
1999). Available information suggests a high incidence of suicidal behavior in juvenile correctional facilities; however,
until recently, current national data has been lacking. Although the number of reported suicides appears low, significant
numbers of juvenile justice clinicians believe the problem is underreported (Penn, Esposito, Schaeffer, Fritz, Spirito,
2003). In addition, the placement of youth adjudicated as adults raises concern as to what effect the adult correctional
environment may have on this problem.
The U.S. Justice Department’s Office of Juvenile Justice and Delinquency Prevention in 2004 released the National
Center on Institutions and Alternatives’ national survey on juvenile suicide in confinement (Hayes, 2004). The study
found several significant differences between adult suicides and suicide by juveniles in confinement. Significant findings
regarding juvenile correctional suicides included the following:
Timing of Suicides: Except in detention centers, deaths were evenly distributed over a period of more than 12 months,
with the same number occurring within the first 1 to 3 days of confinement as 12 months or more later. Contrary to adult
suicides in jails, few suicides occurred within the first 24 hours. Most (71%) juvenile suicides occurred during traditional
waking hours (7 a.m. to 9 p.m.). Half occurred from 6 p.m. to midnight, and almost a third between 6 p.m. and 9 p.m.
Room Confinement Status: Consistent with other recent research (Gallagher & Dobrin, 2006) half of victims were on
room confinement status (i.e., time-out, segregation, quiet room, separation) at the time of death. The reasons for such
confinement included failure to follow program rules, inappropriate behavior, and threat of or actual physical abuse by
staff or peers.
Prior Suicidal Behavior: 71% of those who committed suicide had a history of suicidal behavior, most commonly suicide
attempt, followed by verbalizing a suicidal ideation and/or threat, suicidal gesture, and self-mutilation.
Comprehensive Suicide Prevention Programming and Training: Although 79% of reporting facilities had a written suicide
prevention policy at the time of the suicide, only 20% (10% among detention centers) had comprehensive programming
at that time. Most facilities lacked an adequate suicide prevention curriculum, suggesting lack of commitment to such
training.
Suicide Prevention
This position statement is not a comprehensive guide to suicide prevention for youth in correctional settings. Different
national organizations parse out essential elements for suicide prevention programs. The most comprehensive list
appears in standard Y-G-05 Suicide Prevention Program in NCCHC’s Standards for Health Services in Juvenile
Detention and Confinement Facilities (2004). However, all programs have a common goal: to prevent suicide,
and, if a suicide occurs, to guide evaluation of the event to enable learning that will improve care and enhance preventive
actions.
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Page 21 of 65
This statement presents seven components of a successful suicide prevention program that focuses on recent research
and the implications for improved suicide prevention.
Position Statement
NCCHC recommends that all juvenile facilities, regardless of size or type, develop and implement a comprehensive
suicide prevention program that takes into consideration the unique characteristics of juvenile suicide risk in correctional
settings. Necessary revisions to current policies and procedures should be based on the implications of the recent
research. The recommendations below apply to all correctional facilities housing adolescents, including adult jails or
prisons. The legal status of a youth does not change his or her health needs.
1. Staff Training in Suicide Prevention
Nationwide, suicide prevention training curricula in juvenile facilities primarily rely on information extrapolated from adult
inmate suicides. Although there are common elements in such training across all types of correctional facilities, the
differences between juvenile and adult inmate suicides support the development of suicide prevention training targeted
specifically to juvenile facilities and based on the latest research regarding juvenile suicide. In initial and refresher
juvenile suicide prevention training, all direct care, medical, and mental health personnel should receive comprehensive
training in the program components outlined in this position statement.
2. Ongoing Identification of Risk
Youth can become suicidal at any time during their confinement. Thus, continuous assessment of all juveniles is critical
to prevent suicides. Suicide risk screening and assessment needs to be part of the admission process, but it is not a
single event and vigilance should be ongoing. The intent of a suicide prevention program should not be "zero" juveniles
on precautions, but rather to provide a systemwide process of ongoing identification, management, and stabilization of atrisk or suicidal juveniles. A continuous assessment process alerts staff to consider critical components for identifying and
managing risk on a day-to-day basis. The following points are especially helpful when working with adolescents:
! A prior history of suicide attempts and related behaviors is strongly related to future risk. Information should be
obtained about the need for suicide precautions during a previous confinement and a history of suicidal behavior or other
risk factors while in the community.
! Juveniles who have required special precautions during their current confinement should continue to be assessed
frequently, even after active suicide precautions have been removed.
! Staff should not rely solely on the statements of juveniles who deny they are suicidal nor solely on "contracts for safety"
because these contracts are unreliable. Research has found that youth who appear manipulative may also be suicidal,
and at a minimum suffer from an emotional imbalance that requires a multidisciplinary treatment plan (Dear, Thomson &
Hills, 2000). It is crucial to understand that feigned suicide attempts can and have resulted in death.
3. Communication
Certain behavioral signs exhibited by incarcerated juveniles may indicate a risk for suicide. The likelihood of a suicide
can be reduced by using a multidisciplinary approach and communicating to all staff that signs of risk are present.
Communication in preventing suicide involves all categories of staff, for example, between arresting/transporting officers
and correctional/direct care staff, among facility staff (including medical and mental health staff), and between facility
staff and the at-risk juvenile.
4. Housing
Half of all juvenile suicides occur among youth on room confinement status. Further research is necessary to explore the
relationship between suicide and isolation.
Despite the fact that youth are alone in their rooms overnight, with ample opportunity and privacy to engage in selfinjurious behaviors, the vast majority of suicides among youth on room confinement occur during waking hours. During
these time periods, youth are usually involved in programming or are interacting with staff and peers. These interactive
situations provide an opportunity for youth to become involved in confrontations and inappropriate behavior, resulting in
room confinement.
Youth on room confinement status must be closely observed and receive frequent mental status assessments by
qualified mental health personnel. Facility officials should also explore alternatives to room confinement.
Page 22 of 65
Safe physical environments are critical to prevent juvenile suicides. The vast majority of these suicides occur by hanging,
using bedding attached to a variety of anchoring devices, including door hinges/knobs, air vents, and window frames.
Housing units and cells must be suicide resistant, and officers must have cutting tools readily available to remove the
ligature within seconds of discovering the youth.
5. Levels of Monitoring
The monitoring of at-risk juveniles should be based on their individual clinical needs and not simply on the resources that
are said to be available. Medical evidence suggests that brain damage due to strangulation caused by a suicide attempt
can occur within 4 minutes, and death within 5 to 6 minutes. Although various levels of monitoring may be used,
generally facilities maintain three levels of special observation based on assessment of the immediacy of the suicide risk.
Constant Observation: This 1:1 monitoring is used when suicide risk is high. It occurs on a continuous, uninterrupted
basis for a juvenile judged to be at imminent risk for suicide. These juveniles may also be assessed as in need of
psychiatric hospitalization. In such cases, the one-on-one, constant observation is maintained until the transfer occurs.
Intermediate Observation: This monitoring is used for juveniles assessed as being at moderate risk for suicide. It occurs
at staggered intervals not to exceed 5 minutes.
Close Observation: This monitoring is used for juveniles assessed to be at low risk for suicide. It occurs at staggered
intervals not to exceed 15 minutes.
Since facilities may differ in how they define the requirements for monitoring, it is critical that staff know what is required.
Aids, such as closed-circuit television, can be used to supplement, but never substitute for, staff monitoring. Mental
health staff should assess and provide timely interventions at least daily for suicidal juveniles.
6. Intervention
A sound and comprehensive suicide prevention program provides early identification and intervention for at-risk and
suicidal youth. Mental health clinicians new to the correctional setting should be oriented to the unique challenges that a
suicidal adolescent presents. Multidisciplinary treatment plans, while specifically tailored to monitor and stabilize the
juvenile, need to be revised and updated as the youth improves. An aspect of intervention often overlooked is the
development of long-range goals. Even youth that appear stable need intermittent follow-up to monitor progress.
7. Mortality and Morbidity Review
Every completed suicide and serious suicide attempt (e.g., requiring hospitalization) should be examined through a
morbidity/mortality review process. Ideally, this review is conducted by a multidisciplinary team including representatives
of both line and management correctional staff, as well as medical and mental health personnel. A psychological autopsy
is also recommended. NCCHC’s juvenile standard Y-A-10 Procedure in the Event of a Juvenile Death is one source of
further information.
Adopted by the National Commission on Correctional Health Care Board of Directors
October 14, 2007
Additional Resources
Council of Juvenile Correctional Administrators. (2003). Performance-based Standards (PbS) for youth
correction and detention facilities: PbS goals, standards, outcome measures, expected practices
and processes. Braintree, MA: Author.
Hayes, L. (2007). Jail suicide prevention: Avoiding obstacles to prevention. Baltimore: National Center on
Institutions and Alternatives. Available at http://www.ncianet.org
Hayes, L. (2007). Jail suicide prevention: Guiding principles to suicide prevention in correctional
facilities. Baltimore: National Center on Institutions and Alternatives. Available at http://www.ncianet.org
Page 23 of 65
Hayes, L. (2007). Jail suicide prevention: Key components of a suicide prevention program. Baltimore:
National Center on Institutions and Alternatives. Available at http://www.ncianet.org
Roush, D. (1996). Desktop guide to good juvenile detention practice. Washington, DC: U.S. Department of
Justice, Office of Juvenile Justice and Delinquency Prevention.
References
Arias, E., Anderson, R., Kung, H., Murphy, S., & Kochanek, K. (2003, September 18). Deaths: Final data for 2001.
National Vital Statistics Report, 52(3). Hyattsville, MD: National Center for Health Statistics.
Carmona, R. H. (2005, June 15). Suicide prevention among Native American youth. Statement of Richard H.
Carmona, MD, MPH, FACS, Surgeon General, U.S. Public Health Service, U.S. Department of Health and Human
Services. Testimony before the Indian Affairs Committee, U.S. Senate. Retrieved from http://www.surgeongeneral.gov/
news/testimony/t06152005.html
Dear G., Thomson D., & Hills, A. (2000). Self-harm in prison: Manipulators can also be suicide attempters. Criminal
Justice and Behavior, 27, 160-175.
Gallagher, C., & Dobrin, A. (2006). Facility-level characteristics associated with serious suicide attempts and deaths from
suicide in juvenile justice residential facilities. Suicide and Life-Threatening Behavior, 36, 363-375.
Hayes, L. (2004). Juvenile suicide in confinement: A national survey (NCJ 206354). Washington, DC: U.S.
Department of Justice, Office of Juvenile Justice and Delinquency Prevention.
National Commission on Correctional Health Care. (2004). Standards for Health Services in Juvenile
Detention and Confinement Facilities. Chicago: Author.
Penn J. V., Esposito C. L., Schaeffer L. E., Fritz G. K., & Spirito, A. (2003). Suicide attempts and self-mutilative behavior
in a juvenile correctional facility. Journal of the American Academy of Child and Adolescent Psychiatry,
7, 762-769.
U.S. Public Health Service. (1999). The Surgeon General’s call to action to prevent suicide. Washington,
DC: Author.
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Page 24 of 65
Adjudication of Youths as Adults in the
Criminal Justice System
POSITION STATEMENT
Approved by the Board of Trustees, December 2005
Approved by the Assembly, November 2005
"Policy documents are approved by the APA Assembly and Board
of Trustees…These are … position statements that define APA
official policy on specific subjects…" -- APA Operations Manual.
The ostensible goals of transfer, or waiver, to the criminal justice
system include: (1) deterrence of youth from committing crimes, (2)
reduction in recidivism among youth who are transferred, and (3)
improvement of public safety. However, instead of accomplishing their
intended goals, waivers have seriously disrupted the lives of youth, and
their families, especially those from minority communities. The federal
government, in concert with states, should review and develop a strategy
to reform current transfer/waiver practices. The general goals of such
reform must be: to reduce the number of youth inappropriately transferred
to the criminal justice system who could be better served by the juvenile
justice system, to provide rehabilitation services that support the
development of youth as valued members of society, and to ensure
community safety. Reform should specifically include:
(1) a moratorium on the expansion of eligibility criteria for transfer.
(2) limiting transfer only to judicial discretion (or sole authority by
judge).
(3) an elimination of transfers for non-violent offenders.
(4) an elimination of transfer of first-time offenders.
(5) the development of specialized facilities for transferred youth. Such
facilities would include small living units that are secure and safe;
programming that addresses the developmental, educational,
health, mental health, religious, and other special needs of these
youth; and adequately staffed with qualified workers to ensure
safety and specialized programming (Council of Juvenile
Correctional Administrators, 2005).
The first Juvenile Courts were established approximately one hundred
years ago as an effort to develop a more humane system for youth than
that of the criminal justice system. This was driven, in large part, by
judicial acknowledgement that youth were developmentally quite different
from adults with respect to the law. Youthful offenders were considered to
be cognitively and morally immature as compared to their adult
counterparts and therefore were not deemed as fully responsible as adults.
In addition, youth were thought to be more malleable given their stage of
development and responsiveness to interventions. This concept of
developmental immaturity served as the framework for rehabilitation to
prevent future criminal behavior, one of the primary goals of the juvenile
court.
The juvenile justice system recognized that those young offenders,
who were not amenable to rehabilitation or who were a threat to public
safety, would be better dealt with in the criminal justice system. Judges
were given the authority during the juvenile court’s nascent phase to
decide if an offense by a youth would be more appropriate for the adult
criminal justice system. Due to an increasing rate of youth violence in the
1980’s and early 1990’s and the perceived failure by juvenile courts to
deter youth violence, state legislatures enacted a broad range of legal
mechanisms by which delinquency cases could be transferred or waived to
the adult criminal justice system. These legal mechanisms included
discretionary waivers (also known as “certification,” “bindover,” “remand,”
“transfer,” or “decline” proceedings), mandatory waivers, presumptive
waivers, statutory exclusions, and “once an adult/always an adult” waivers.
In addition, prosecutors have recently been given more discretionary
authority by state legislatures than judges in certain situations and may
transfer a case via the mechanism of direct file. Many states do not identify
the lowest age at which these waiver mechanisms can be applied. Some
states identify ages as young as six and ten for which a child could legally
be transferred to the criminal judicial system (Griffin, Torbet, and
Szymanski, 1998).
Recent national data from the U.S. Department of Justice (OJJDP,
2003) indicates that approximately 7500 youth are transferred to the
criminal court each year by judicial discretion, that approximately 27,000
youth are sent to the criminal justice system by direct file, and that 218,000
youth completely bypass the juvenile justice system via legislation that
lowers the age at which an alleged juvenile offender will be dealt with as
an adult below age eighteen. More than half of the transfer cases in one
year were for nonviolent drug or property offenses, including 43 percent for
offenses against persons, 37 percent for property offenses, 14 percent for
drug offenses, and 6 percent for public order offenses. Eight percent of
youth admitted to state prison before age 18 were released before
reaching their eighteenth birthday and 75 percent were released before
becoming 22 years old. Ninety-three percent have served their minimum
sentence before age 28. Unfortunately, these youth did not receive the
rehabilitative support that the juvenile justice system could have provided.
Research has demonstrated that the practice of transfer has not
deterred youth in the larger community from offending; that with a few
exceptions, i.e. property offenses, recidivism did not decrease among
transferred youth, and improved community protection was not evident.
One study concluded that the seriousness of re-offending among
transferred youth was greater than for non-transfers. The claim that more
serious offenders are less likely to respond to rehabilitation efforts is not
supported by research (Lipsey and Wilson, 1998). Additionally, youth who
are charged and convicted as adults receive felony records, which in many
states means, for example, that youth are no longer eligible for federal or
state loans for education or housing, further increasing the chance that
they will remain involved in the criminal system. Also, convicted youth
cannot vote in most jurisdictions which only serves to further marginalize
these young people.
Waivers and transfers have been disproportionately applied to
minority communities. In a study of eighteen jurisdictions sponsored by a
coalition of children’s advocates (Juszkiewitcz, 2000), researchers found
that 82% of transfers involved minority youth, with African-Americans
accounting for 70% of the transferred youth and Latinos accounting for
23%. In one extreme example of a county in Alabama, African-American
youth accounted for 3 out of 10 felony arrests while representing 80
percent of felony cases transferred to adult court African-Americans were
overrepresented among nonviolent drug and public order cases sent to the
criminal justice system. African-American and Latino youth were more
likely than white youth to receive a sentence of adult incarceration as
opposed to adult probation or other lesser sentences. The use of private
attorneys appeared to increase the likelihood of a transfer back to the
juvenile court and lowered conviction rates. However, white youth were
twice as likely to be represented by a private attorney and were convicted
less frequently than African-American youth.
Recent studies on incarcerated youth indicate that up to 75% of
incarcerated youth have a diagnosable mental illness (Cocozza and
Skowyra, 2000). A disproportionate number of these youth are victims of
child abuse. Procedures and frequency of mental health screening,
assessment, and treatment of mental disorders among incarcerated youth
vary widely from jurisdiction to jurisdiction; treatment of mental disorders is
not mandated in most jurisdictions. There is evidence that suggests that
youth housed in adult detention facilities are nearly five times more likely to
be sexually assaulted, three times more likely to be assaulted by prison
staff, and fifty percent more likely to be assaulted with a weapon than
youth in a juvenile facility.
Adjudication of Youths as Adults in the Criminal Justice System
The American Psychiatric Association 1000 Wilson Blvd., Suite 1925 Arlington, VA 22209-3901
Telephone: (703) 907-7300 Fax: (703) 907-1085 Email: [email protected]
Page 25 of 65
Developmental differences between youth and adults who commit
crimes are great. In situations involving split second decisions, youth are
on average, less mature than adults in the areas of cognition and
emotional development. They tend to be less capable of appreciating the
consequences of their behavior tend to follow the direction of their social
group, are more readily swayed by their peers, are more impulsive and
often demonstrate poor judgment. Many in the criminal justice system are
not be mentally competent to be adjudicated (www.mac-adoldevjuvjustice.org/page22.html). As such, criminal justice sanctions are harsh,
unreasonable, and fail to consider youth in a developmental context.
These observations apply specifically to minors who are being adjudicated
in the criminal justice system, and should not be construed to apply to
minors’ cognition and behavior in all other situations.
Cocozza, J, Skowyra, K (2000) Youth with Mental Disorders: Issues and
Emerging Responses. Washington DC: Office of Juvenile Justice and
Delinquency Prevention Journal, 7(1).
Council of Juvenile Correctional Administrators (2005). Position Paper,
Waiver and Transfer of Youths to Adult Systems. Braintree, MA
www.cjca.net/documents/Waiver%20and%20Transfer.pdf
Griffin, P, Torbet, P, Szymanski, L (1998). Trying Juveniles as Adults in
Criminal Court: An Analysis of State Transfer Provisions. Washington
DC: OJJDP, U.S. Department of Justice.
Juszkiewitcz, J (2000). Youth Crime/Adult Time: Is Justice Served?
Washington DC: Building Blocks for Youth.
www.buildingblocksforyouth.org
Lipsey, M, Wilson, D (1998). Effective Intervention for Serious Juvenile
Offenders: A Synthesis of Research. In Loeber R, Farrington D (eds.)
Serious & Violent Juvenile Offenders: Risk Factors and Successful
Interventions, Thousand Oaks, CA: Sage.
OJJDP (2003). Juvenile Offenders and Victims, National Report Series.
Bulletin. Washington DC: U.S. Department of Justice, Office of Justice
Programs.
Adjudication of Youths as Adults in the Criminal Justice System (page 2 of 2)
The American Psychiatric Association 1000 Wilson Blvd., Suite 1925 Arlington, VA 22209-3901
Telephone: (703) 907-7300 Fax: (703) 907-1085 Email: [email protected]
Page 26 of 65
NJDA - National Juvenile Detention Association - Who We Are
Opposing the use of Adult Jails for the Detention of Juveniles
WHEREAS, Juvenile Courts were established to provide a special system for the care and
treatment for children and to remove them form being treated along with the adult
offenders; and that concurrent with the development of the Juvenile Court movement,
Juvenile Detention Centers were established with the goal of removing children from adult
jails.
THEREFORE, BE IT RESOLVED: The National Juvenile Detention Association continues
to oppose the use of jails for the detention of juveniles.
The National Juvenile Detention Association will continue to support efforts aimed at
removal of children from adult jails and the development of program alternatives to jail
detention.
Date:
October 14, 1981
Site:
Baton Rouge, Louisiana
Copyright © 2001-2003, NJDA
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American Public Health Association
800 I Street, NW • Washington, DC 20001-3710
(202) 777-APHA • Fax: (202) 777-2534
[email protected] • http://www.apha.org
Policy Statement Database
New Search »
Encourage Healthy Behavior by Adolescents
Policy Date: 1/1/2000
Policy Number: 200027
THE AMERICAN PUBLIC HEALTH ASSOCIATION,
Recognizing the importance of reducing alcohol, tobacco, and other drug use among youth1 and seeking to update that focus on
prevention of initial risky behavior and the high incidence of injuries resulting from risky behaviors by adolescents and evidence-based
interventions that prevent and ameliorate further problems; and
Noting that comprehensive approaches are more effective than programs that focus on a single behavior;2-4 and
Noting that tobacco use,5 alcohol and drug abuse,6 unsafe driving practices, violent behavior7 including attempting suicide,8
unprotected sex,9 poor nutrition,10,11 and lack of exercise10-12 threaten the healthy development of youth into productive adults; and
Observing that previous resolutions have considered specific unhealthy behaviors, their results, and methods of intervention;13-26 and
Recognizing that risky behavior is affected by core social institutions such as education, administration of justice, and economic
opportunities;27 and
Observing that publicizing adolescent violent behavior in newspapers,28-29 television,30-32 and other media can lead to “copy-cat”
behavior by adolescents and enactment of tougher penalties by voters; and
Noting that the majority of adolescents may engage in one or more of these behaviors at some time,27,33-35 but these behaviors are
not normative; and
Recognizing that youth at high risk for life-threatening activities tend to engage in multiple risky behaviors;36-41 and
Noting that adolescents at high risk for health and criminal problems also tend to have multiple predisposing factors,28,33,36,42,43
including poor academic achievement, lack a caring adult, and have access to illegal substances or guns;37,44 and
Recognizing that these predisposing and enabling factors tend to e complex, a more comprehensive approach to prevention and
intervention is required; and
Observing that programs that focus on promoting academic success for all students, developing positive relationships with peers and
adults, providing family support, and increasing family and community engagement have been effective in reducing risky
behavior28,33,36,45-47 and that many of these programs include school-based health centers and family resource centers where multiagency services can be coordinated; and
Finding that these elements are often present in programs known as community schools48,49 that provide activities outside of school
hours for students, their families, and community members; and
Noting that intervention policies requiring expulsion and suspension drive students from school and inhibit their development;41,45,50
and
Recognizing that interventions involving mandatory minimum sentences and incarceration of youth with adult criminals encourages
development of deviant behaviors and inhibits positive learning, forcing increasing dependence on society;28,51,52 therefore
1. Urges Congress and the states to enact legislation and provide appropriations that promote collaboration among government
agencies to develop comprehensive and integrated programs and services for prevention of high-risk adolescent behavior, such as the
Safe Schools/Healthy Students Initiative;53
2. Urges Congress, the states, and local communities to provide adequate funding for community schools that include after-school
programs, preferably with community service opportunities, health education programs, family resource centers, and school-based
health centers;
3. Urges Congress to fund collaborative research about the impact of community schools on prevention of risky behavior by
adolescents, and disseminate the results to policy makers and professional and lay audiences;
4. Urges wire services and other media to publicize positive activity of adolescents;
5. Urges all states to enact legislation prohibiting media from publicizing names of those under the age of 18 who commit violent
crimes, or their families;
6. Recommends that school districts implement alternative educational experiences in lieu of suspension and expulsion; and
7. Urges Congress and the states to repeal mandatory minimum sentences for juveniles; and
8. Urges Congress, the states, and local governments to house incarcerated youth under the age of 18 with others of similar age, and
not to house them with incarcerated adults.
References
http://www.apha.org/advocacy/policy/policysearch/default.htm?NRMODE=Published&NR...
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1. Policy Statement 8817(PP): A Public Health Response to the War on Drugs: Reducing Alcohol, Tobacco and Other Drug Problems
among the Nation’s Youth. APHA Policy Statements; 1948-present, cumulative, APHA: Washington DC.
2. National Institute for Drug Abuse. Preventing drug abuse among children and adolescents: A research-based guide. National
Institute for Drug Abuse, 1997.
3. National Institute on Drug Abuse. Drug abuse prevention: What works. Washington, DC: National Institute on Drug Abuse, 1997,
pp. 47-50.
4. Satcher D, et al., Violence prevention is as American as apple pie. Am J Preventive Medicine, 1996; 12(5):v-vi.
5. US Department of Health and Human Services; Preventing tobacco use among young people: A report of the Surgeon General.
Atlanta, Georgia: US Department of Health and Human Services, Public Health Service, 1994.
6. Centers for Disease Control; Youth risk behavior surveillance survey. Morb Mortal Wkly Rep, 1996; 45(SS-4):1-85.
7. US Department of Justice, Uniform Crime Reports 1997, preliminary annual release. Washington, DC: Federal Bureau of
Investigation; 1998.
8. Centers for Disease Control and Prevention; Youth risk behavior surveillance—United States, 1997. Morb Mortal Wkly Rep, 1998;
47(SS-3).
9. Centers for Disease Control and Prevention, Trends in sexual risk behaviors among high school students——United States, 199197. Morbidity and Mortality Weekly Report, 1998; 47(36):749-751.
10. Healthy People 2010. National Health Promotion and Disease Prevention Objectives, conference edition, in two volumes.
Washington DC: US Department of Health and Human Services, Public Health Services, 2000.
11. West P and Farrior E. School Food Service Research Review. 1991.
12. Centers for Disease Control and Prevention, Guidelines for school and community programs to promote lifelong physical activity
among young people. Morb Mortal Wkly Rep, 1997; 46(RR-6).
13. Policy Statement 9808: National Tobacco Control Legislation. APHA Policy Statements, 1948–present, cumulative, APHA:
Washington DC.
14. Policy Statement 7513: Alcoholism. APHA Policy Statements, 1948–present, cumulative, APHA: Washington DC.
15. Policy Statement 7121: Substance Abuse as a Public Health Problem. 1 APHA Policy Statements, 1948–present, cumulative,
APHA: Washington DC.
16. Policy Statement 9213(PP): Advertising and Promotion of Alcohol and Tobacco Products to Youth. APHA Policy Statements,
1948-present, cumulative, APHA: Washington DC.
17. Policy Statement 9610: Elimination of Outdoor Tobacco Advertising. APHA Policy Statements, 1948–present, cumulative, APHA:
Washington DC.
18. Policy Statement 9611: Linkage of Medical Services for Low-Income Populations with Mental Health, Substance Abuse, and
Other Supportive Services. APHA Policy Statements, 1948–present, cumulative, APHA: Washington DC.
19. Policy Statement 9210: Homelessness as a Public Health Problem. APHA Policy Statements, 1948–present, cumulative, APHA:
Washington DC.
20. Policy Statement 9818: Handgun Injury Reduction. APHA Policy Statements, 1948–present, cumulative, APHA: Washington DC.
21. Policy Statement 9123: Social Practice of Mass Imprisonment. APHA Policy Statements, 1948–present, cumulative, APHA:
Washington DC.
22. Policy Statement 7837: Prevention of Unwanted Teenage Pregnancy. APHA Policy Statements, 1948–present, cumulative, APHA:
Washington DC.
23. Policy Statement 6701: Helping Youth Achieve Healthy Sexual Adjustment. APHA Policy Statements, 1948–present, cumulative,
APHA: Washington DC.
24. Policy Statement 9309: Sexuality Education. APHA Policy Statements, 1948–present, cumulative, APHA: Washington DC.
25. Policy Statement 6917: Sex Education in School Systems. APHA Policy Statements, 1948–present, cumulative, APHA:
Washington DC.
26. Policy Statement 8205: Endorsement of the National Nutrition Consortium’s Nutrition Education Policy Guidelines. APHA Policy
Statements, 1948–present, cumulative, APHA: Washington DC.
27. Elliott D. Youth violence: An overview. Boulder, CO: Center for the Study and Prevention of Violence, 1994.
28. Tolan P and Guerra N. What works in reducing adolescent violence: An empirical review of the field. Boulder, CO: Center for the
Study and Prevention of Violence, 1994.
29. Klein J, et al. Adolescents’ risky behavior and mass media use, Comment. Pediatrics, July 1993; (1):146-148.
30. Centerwall B. Television and violence the scale of the problem and where to go from here. JAMA, 1992; 26(22):3059-3063.
31. Dorfman L, et al. Youth and violence on local television news in California. Am J Public Health, 1997; 87(8):1311-1316.
32. Policy Statement 7622: Television and Health. APHA Policy Statements, 1948–present, cumulative, APHA: Washington DC.
33. Earls F. Violence and today’s youth. The Future of Children; Critical health Issues for Children and Youth. 1994; 4(3): 4-23.
34. Moffitt T. Adolescence-limited and life-course-persistent antisocial behavior: A developmental taxonomy. Psychological Review.
1993; 100(4):674-701.
35. Elliott D, et al. National Youth Survey—General Delinquency Scale. Cumulative risk across family stressors: Short- and long-term
effects for adolescents. 1998; 26:119-128.
36. Lerner R and Galambos N. Adolescent development: Challenges and opportunities for research, programs and policies. Annual
Review of Psychology. 1998; 49:413-446.
37. Williams K., Guerra N, and Elliott D. Human Development and Violence Prevention. Boulder CO: Center for the Study and
Prevention of Violence; 1997.
38. Ellickson P, Saner H, and McGuigan K. Profiles of violent youth: Substance use and other concurrent problems. Am J Public
Health. 1997; 87(6):985-991.
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39. Cocozza J and Skowyra K. Youth with Mental Health Disorders: Issues and Emerging Responses. Washington, DC: Office of
Juvenile Justice and Delinquency; 2000; p. 3-13.
40. Hawkins J et al. Predictors of youth violence. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. 2000;. 111.
41. Dryfoos J. Adolescents at Risk: Prevalence and Prevention. New York, NY: Oxford Press; 1990.
42. Jessor R. Successful adolescent development among youth in high-risk settings. American Psychologist. 1993; 48(2):117-126.
43. Hawkins J, Catalano R and Miller J. Risk and protective factors for alcohol and other drug problems in adolescence and early
adulthood: Implications for substance abuse prevention. Psychological Bulletin. 1992; 112:64-105.
44. American Academy of Pediatrics Committee on Adolescence, Firearms and adolescents. Pediatrics. 1992; 89(4):784-787.
45. Carnegie Council on Adolescent Development, Great Transitions: Preparing Adolescents for a New Century. New York, NY:
Carnegie Corporation of New York; 1995.
46. Decker L and Decker V. Engaging Families and Communities: Pathways to Educational Success. Fairfax, VA: National
Community Education Association; 2000.
47. Dryfoos J. Full-Service Schools. San Francisco, CA: Jossey-Bass; 1994.
48. Canada G. Fist, Stick, Knife, Gun. Boston, MA: Beacon Press; 1996.
49. Melaville A. Learning Together: The Developing Field of School——Community Initiatives. Flint, MI: Charles Stewart Mott
Foundation; 1998.
50. US Department of Education and US Justice Department. Safe and smart——making after-school hours work for kids.
Washington, DC: Government Printing Office; 1998.
51. Gottfredson D. Choosing punishments: Crime control effects of sentences, Research Review. 2000; p. 2.
52. Singer S and McDowall D. Criminalizing delinquency: The deterrent effects of the New York juvenile offender law. Law &
Society Review. 1988; 22(3):521-535.
53. US Department of Justice, President Clinton announces more than $200 million in community grants to prevent violence among
youth. Washington, DC: US Department of Justice; 2000.
2008 © American Public Health Association
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NAACP Resolution*
Opposition to Transfer of Youth to the Adult Criminal Justice System
WHEREAS the NAACP has previously resolved that prevention and rehabilitation are vital
components of any juvenile justice policy, and that equal protection to youthful offenders be
guaranteed under the law; and
WHEREAS youth of color receive more punitive treatment than their white peers for the same
offenses at all stages of the justice system; and
WHEREAS African-American youth are disproportionately represented in cases transferred to
adult court, representing 16% of the youth population but 35% of youth judicially transferred,
and 58% of youth committed to state prison; and
WHEREAS, African-American youth are five times more likely than white youth to be
charged in adult court for a drug offense; and
WHEREAS the adult criminal justice system is punitive and not rehabilitative by nature,
resulting in youth being denied programming such as education, mental health treatment, and
employment skills training which are essential to proper development; and
WHEREAS the historical role of the juvenile system is to rehabilitate and treat youthful
offenders while holding them accountable and maintaining public safety, and it is therefore
better equipped to work with youth than the adult criminal justice system; and
WHEREAS an average of 7,500 youth are held in adult jails each day in America, many of
whom will be adjudicated back to the juvenile system or will not be convicted; and
WHEREAS there exists serious human rights concerns, as well as physical and emotional
health concerns, for housing youth in adult jails as youth are 36 times more likely to commit
suicide in an adult jail than in a juvenile detention facility, and youth comprise 21% of all
substantiated victims of inmate-on-inmate sexual violence although they are only 1% of the jail
population; and
WHEREAS public safety is compromised, when youth transferred to the adult court are 34%
more likely to reoffend than youth of a similar background and offense type treated in the
juvenile system according to the federal Centers for Disease Control; and
WHEREAS the use of statutes or procedures that automatically exclude youth from the
juvenile court without an assessment of individual circumstances by a judge denies youth basic
fairness, and contradicts public opinions polls revealing that 92% of the U.S. public disagrees
with such policies; and
WHEREAS the collateral consequences of an adult charge or conviction may cause youth to
be denied opportunities to obtain education, employment, federal assistance, and voting rights,
thereby creating further obstacles to rehabilitation.
Page 33 of 65
THEREFORE, BE IT RESOLVED that the NAACP strongly opposes any policies, statutes,
or laws that increase the number of youth transferred to the adult criminal justice system and
the number of youth held in adult jails and prisons; and
THEREFORE, BE IT RESOLVED that the NAACP will work to end the practice of youth
being tried in the adult criminal justice system and to ensure that young people are
appropriately adjudicated in ways that enhance community rehabilitation, safety and stability;
and
THEREFORE, BE IT RESOLVED that the NAACP strongly supports reforms that
effectively reduce the overrepresentation and disparate treatment of African-American youth
among youth who are prosecuted, detained, sentenced, and incarcerated as adults; and
THEREFORE BE IT FINALLY RESOLVED that the NAACP supports the creation and
maintenance of programs and services that address the educational, health, mental health, and
vocational needs of youth currently in and exiting from the juvenile and adult criminal justice
systems.
*NAACP Resolution approved at the July 2008 National Convention.
Page 34 of 65
ICCA Public Policy on Juvenile Justice
I.
INTRODUCTION
ICCA has a long-standing tradition of supporting juvenile justice systems and
programs that operate in the best interests of children.
ICCA believes that children and youth have distinct personal and developmental needs
that require specialized programs completely apart from adult offenders. The juvenile
justice system must provide specialized care and rehabilitative programs for young
offenders consistent with the protection of the public and focused on the principle of
accountability for behavior. The juvenile correctional system includes: prevention,
diversion, specialized treatment programs, family focused therapies, school-based
services, wrap-around services, therapeutic foster care, mentoring, mediation,
community residential detention, and probation.
ICCA believes that juveniles who commit crimes should be held accountable and that
communities must be safe-guarded. ICCA members support a menu of evidencebased, least restrictive programs by offering various levels of community treatment,
care and community reintegration. While juvenile corrections has an overarching
responsibility to provide programs that suppress crime, it also seeks to fulfill the goals
of family restoration, competency development, and healing the harm to communities.
ICCA believes that government agencies at all levels should develop and support
policies and fund programs that will sustain a comprehensive, balanced approach to
delinquency, youth crime and prevention. The highest priority should be placed on
evidence-based treatment and services that suppress crime, develop competencies,
strengthen families and heal the harm to communities. In partnership with juvenile
corrections professionals, elected officials, the educational system, the media and the
community should all be leaders in providing adequate resources and positive role
models for children at risk.
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II.
BACKGROUND
Concern over juvenile crime has resulted in governments and communities taking
stronger and more effective roles in preventing delinquency. Juvenile crime overall has
decreased every year for more than a decade. Most juveniles do not commit serious
felonies and most are detained for low level offenses. When juveniles who are detained
for less serious offenses are placed in community settings, they are more effectively
served and reduce the need for expensive secure residential facilities.
ICCA, in support of “What Works” according to evidence-based best practices, believes
the priorities of a continuum of services should be to:
A. Reduce delinquent behavior through primary prevention and collaboration with
communities and families.
B. Promote effective intervention and treatment practices.
C. Appropriately classify and place non-violent offenders in juvenile community-based
programs; and
D. Emphasize strengths and protective factors of communities, families and
individuals.
E. Provide transition services for juveniles released from secure residential facilities to
less restrictive, community-based residential programs.
III. STATEMENT OF PRINCIPLES
ICCA believes policy-makers, juvenile justice officials and agencies should:
A. Develop a system that offers a continuum of care, including prevention and early
intervention, remedial, extended care, specialized treatment services, after care
and custody. The priority of this continuum should be to eliminate the risk of
2
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delinquent behavior. The system should recognize the importance of partnerships
with related service providers
B. Provide adequate, consistent and reliable funding that supports the continuum of
care.
C. Provide a system of comprehensive assessment.
D. Address the child’s need for permanence and bonding with the family and the
community. Legislation and policy should support service systems (e.g., education,
substance abuse and mental health treatment) that affirm individual growth and
development of children and youth, and provide effective and humane approaches
to treatment, supervision and custody.
E. Expand and utilize research and evaluation of what treatment and services are
most effective in preventing delinquency, working with status offenders,
supervising juveniles accused of criminal behavior, and providing support and
community reintegration for those released from secure care.
F. Safeguard the accuracy and privacy of juvenile records.
G. Make appropriate decisions on individual juvenile cases by communicating with all
aspects of the juvenile justice and youth service systems.
H. Provide an appropriate range of community and residential programs and services
to meet individual needs, including education, vocational training, recreation,
religious opportunities, individual and family counseling, medical, dental, mental
health, substance abuse, HIV/AIDS counseling, sexual offender treatment, and
culturally and gender responsive health treatment.
I.
Monitor and evaluate program outcomes to assure quality.
3
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Reviewed and adopted by the ICCA Board of Directors
Date: January 29, 2006
International Community Corrections Association
1730 Rhode Island Ave., N.W.
Washington, D.C. 20036
http://www.iccaweb.org
4
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AMERICAN ACADEMY OF PEDIATRICS
Committee on Adolescence
Health Care for Children and Adolescents in the
Juvenile Correctional Care System
ABSTRACT. Over the past decade, there has been a
dramatic increase in the population of juvenile offenders
in the United States. Juveniles detained or confined in
correctional care facilities have been shown to have numerous health problems. Such conditions may have existed before incarceration; may be closely associated with
legal problems; may have resulted from parental neglect,
mental health disorders, or physical, drug, or sexual
abuse; or may develop within the institutional environment. Delinquent youths are often disenfranchised from
traditional health care services in the community. For
these adolescents, health care provided through correctional services may be their major source of health services. Pediatricians and correctional health care systems
have an opportunity and responsibility to help improve
the health of this underserved and vulnerable group of
adolescents.
SCOPE OF THE PROBLEM
Epidemiologic Factors
A congressionally mandated study released in
1994 reported that yearly admissions to juvenile correctional facilities reached almost 690 000 in 1990.1
These facilities included short-term (awaiting adjudication and placement) detention and reception
centers and long-term (postadjudication and placement) training schools and ranches. Juveniles discharged from correctional facilities in 1990 spent an
average of 15 days in short-term detention centers
and 32 weeks in long-term training schools.1 In 1996,
US courts with juvenile jurisdiction handled an estimated 1.8 million cases in which the juvenile was
charged with a delinquency offense (an offense for
which an adult could be prosecuted in criminal
court). This was a 49% increase, compared with the
number of cases handled by juvenile courts in 1987.
Nationally in 1997, 368 juveniles were in custody for
every 100 000 in the population. On October 29, 1997,
juvenile residential facilities held 105 790 delinquent
juveniles. Public facilities housed 76 335 individuals,
and private facilities held 29 455.2 The number of
offenders younger than 18 years admitted to adult
state prisons has more than doubled from 3400 in
1985 to 7400 in 1997, consistently representing about
2% of new admissions in each of the 13 years.3
Gender demographics of the juvenile population
arrested are changing. In 1996, 1 in 4 juveniles arrested was female. Increases in the percentages of
The recommendations in this statement do not indicate an exclusive course
of treatment or serve as a standard of medical care. Variations, taking into
account individual circumstances, may be appropriate.
PEDIATRICS (ISSN 0031 4005). Copyright © 2001 by the American Academy of Pediatrics.
arrests between 1992 and 1996 were greater for juvenile females than for juvenile males in most offense
categories, including violent crimes, property crimes,
weapon offenses, and drug abuse violations.4 In
1997, there were 748 000 arrests of females younger
than 18 years representing 26% of all juvenile arrests
that year.5 However, the vast majority (86%) of individuals detained in residential facilities are males.2
Black and Hispanic youths account for 6 in 10
juveniles held in residential facilities. Compared
with their proportion in the population, black juveniles are overrepresented at all stages of the juvenile
justice system. Although they comprise only about
15% of the US population between 10 and 17 years
old, they account for approximately 45% of the population in detention and residential facilities. On October 29, 1997, for every 100 000 non-Hispanic black
juveniles in the population, 1018 were in a residential
placement facility. For Hispanic juveniles, the rate
was 515, and for non-Hispanic whites, it was 204.2
The reasons for this overrepresentation of youths of
color remain unclear but may relate to factors such as
socioeconomic status or racial prejudices.
The rate of recidivism is high in juvenile correctional care facilities. Approximately 40% of adolescents appearing in juvenile court are repeat offenders. Repeat offenders tend to have committed more
serious crimes and are younger at the time of their
first offense than are first offenders.4
HEALTH CONDITIONS EXISTING BEFORE
INCARCERATION
Adolescents entering correctional care facilities
may be at higher risk than unincarcerated youths for
certain problems that may affect their general health,
including: 1) sexually transmitted diseases (STDs)
and drug use and abuse; 2) issues regarding pregnancy and parenting; 3) human immunodeficiency
virus (HIV) infection; and 4) preexisting mental
health disorders.
Medical Conditions—General Health
A landmark report published in 1980 documented
medical problems in 46% of incarcerated youths entering correctional care facilities.6 These problems
included conditions occurring in any population of
youth, such as asthma, hypertension, acne, and diabetes. Conditions occurring at a greater rate in incarcerated than in unincarcerated youth included a 7%
prevalence of tuberculosis (confirmed by positive
results of skin testing) and a 90% prevalence of dental caries or missing, fractured, or infected teeth.6 In
PEDIATRICS Vol. 107 No. 4 April 2001
Page 39 of 65
799
a more recent study, 10% of juveniles admitted to a
short-term detention facility had significant medical
problems (excluding drug and alcohol abuse or uncomplicated STDs) that, if left untreated, could have
a major effect on the growth and day-to-day function
of the juvenile. The most commonly diagnosed problems were asthma, orthopedic problems, and otolaryngologic conditions. Only one third of the detainees
examined had a regular source of medical care, and
only about one fifth had a private physician. More
than half of the families of adolescents with a preexisting medical problem seemed to be unable or unwilling to assist in ensuring that the adolescent receive proper medical care after release.7
of responding correctional facilities provide prenatal
services, and only 30% provide parenting classes.15
One quarter of juvenile male detainees have fathered a pregnancy, and 40% of the detainees who
are fathers report responsibility for more than 1 pregnancy.16 A majority of respondents believed that fathering a child would be desirable, that they would
be capable of being a father to a child, and that they
could be responsible for the child and mother.16 In
another study of adolescent detainees, fathers were
more likely than nonfathers and blacks were more
likely than non-Hispanic whites to report that they,
their parents, and their friends would be pleased if
they were to father a child.7
STDs
HIV Infection
Adolescents in correctional care facilities report
having become involved in sexual behavior at earlier
ages and having had greater rates of STDs than do
nondelinquent adolescents.8 Two recent studies of
adolescent males in detention centers substantiated
previously documented findings of high rates of
STDs in this population. In one study,9 evidence of at
least 1 current STD was found in 15% of male detainees, and 34% of male detainees had a history or
current evidence of at least 1 STD. Detainees reported frequent sexual and drug use behaviors.8 In
another study,10 an STD was identified in 12% of
male detainees screened at time of admission to a
detention facility. In this group, more than 50% of the
gonorrheal infections and 90% of the chlamydial infections identified were asymptomatic and detectable only by screening. The entire population of
screened detainees reported initiating sexual intercourse at an early age (median, 13 years), having
numerous sexual partners (median, 8 partners), and
inconsistently using condoms (only 37% reported
always using a condom).10
A study published in 1990 documented high rates
of cervicitis, vaginitis, and complaints of vaginal discharge in female juvenile correctional populations.11
In a study published in 1998 that used urine-based
DNA amplification tests to identify unsuspected
Neisseria gonorrhoeae and Chlamydia trachomatis infections in detained females at the time of their initial
medical screening, it was determined that C trachomatis infection existed in 28%, and N gonorrhoeae was
present in 13%.12 Overall, 33% of adolescent females
evaluated had positive test results for one or both
infections.12 Additionally, reports from Chicago and
San Francisco have confirmed the existence of high
rates of STDs among incarcerated females.13
At the present time, few cases of HIV infection or
acquired immunodeficiency syndrome (AIDS) are
being identified in juvenile correctional facilities. Results of a 1994 National Institute of Justice and Centers for Disease Control and Prevention survey reported a cumulative total of 60 incarcerated juveniles
(50 boys and 10 girls) with known AIDS in 73 state
and city or county correctional care systems that
responded.17 Similarly, the rate of HIV seropositivity
among confined juveniles seems to be low. Multiple
states have reported far less than a 1% prevalence
rate of seropositivity for HIV among incoming
screened juveniles.17 Despite these data, the population of juvenile detainees is at high risk for developing HIV infection or AIDS in the future because of
high rates of risk-taking behaviors, including drug
use, initiation of sexual intercourse at a young age,
having multiple sexual partners, and inconsistent
use of condoms.8
Pregnancy and Parenthood
As the number of females entering the juvenile
justice system increases, the number who may be
pregnant increases. Approximately 6% of adult
women entering prison are pregnant.14 Corresponding data are not available for adolescents. However,
a national survey involving juvenile facilities found
that approximately two thirds of 261 correctional
facilities housed between 1 and 5 pregnant adolescents on any given day.15 Only about one third (31%)
800
Preexisting Mental Health Conditions
Mental health problems, predominantly attentiondeficit/hyperactivity disorder, conduct disorder, oppositional-defiant disorder, and depression, have
been found to be common among incarcerated
youths. In 1992, a report reviewing the mental health
needs of youth in the juvenile justice system documented the following18: 1) at least 20% and perhaps
as many as 60% could be diagnosed as having a
conduct disorder; 2) attention-deficit/hyperactivity
disorder may exist in up to 50%; 3) affective disorders may exist in between 32% and 78%; 4) between
2% and 17% had a personality disorder; 5) previous
suicide attempts occurred in up to 28%; and 6) psychotic disorders existed in between 1% and 6%. This
study also reported that higher rates of psychiatric
hospitalizations occur in juvenile offenders than in
the general population of adolescents. Inpatient psychiatric hospitalization rates before detention ranged
from 12% to 26%. In addition, juveniles reported
previous outpatient contacts or treatment at rates
ranging from 38% to 66%.18 A high rate of posttraumatic stress disorder in incarcerated juveniles also
has been demonstrated in more recent research.19
The broad prevalence ranges of many of these mental health diagnoses among juveniles in correctional
care systems may reflect a lack of consistent and
HEALTH CARE FOR CHILDREN AND ADOLESCENTS IN THE JUVENILE CORRECTIONAL CARE SYSTEM
Page 40 of 65
comprehensive evaluations, the variety of settings, or
different populations (eg, male or female, urban or
rural).
PARENTAL NEGLECT, FAMILY DISSOLUTION,
ABUSE, MENTAL RETARDATION, AND
LEARNING DISORDERS
Many reports have documented that a large percentage of delinquent youths have experienced significant emotional or physical trauma before admission to a correctional care facility. Children involved
in the juvenile justice system are more likely to have
a history of child abuse and neglect than those in the
general population. Rates of abuse and neglect have
consistently ranged between 25% and 31% of the
incarcerated juvenile population.18
The prevalence of mental retardation among juveniles has consistently been reported as between 7%
and 15%. The rate of learning disabilities and specific
developmental disorders that exist among juvenile
offenders ranges from 17% to 53%.18 These may be
gross underestimates or overestimates, because most
mentally retarded adolescents do not receive appropriate evaluations by the juvenile justice system unless or until they have committed the most serious or
violent offenses.
RISK BEHAVIORS ASSOCIATED WITH LEGAL
PROBLEMS
Handgun Ownership
The risk of violent death among youth who have
been incarcerated previously is 76-fold greater than
that in the general population.20 A study of urban
high school youths showed that handgun ownership
was highest in youth reporting participation in criminal behavior.21 Another study22 of juvenile detainees reported handgun ownership by almost 60% of
respondents. Adolescents who often heard gunfire in
their neighborhoods reported rates of handgun ownership of almost twice the rate for other youth. Almost 50% of detainees and 68% of handgun owners
reported shooting at another person. Of the detainees, 78% reported having been threatened by someone with a weapon. Perceived improved personal
safety far exceeded recreational reasons as the motivation for handgun ownership (52% vs 4%).22
Substance Use
Since 1990, the Drug Use Forecasting program conducted by the National Institute of Justice has shown
an increase in illicit drug use (alcohol use not included) by detainees or arrestees at almost all sites in
the 12 jurisdictions they evaluate in the United
States.23 The rate of juveniles with positive test results for at least 1 drug ranged from 19% to 58% in
1995. The Drug Use Forecasting program also found
that boys arrested for drug offenses (sales or possession) had the highest rate of positive drug test results, compared with youth arrested for other types
of crimes.23 A high rate of drug use also was found
among youth who committed violent, property, and
other crimes.23,24
CONDITIONS ACQUIRED WITHIN THE
INSTITUTIONAL ENVIRONMENT
Juveniles acquire a range of health care problems
during the period of confinement. In one study,25
almost 60% of boys and 35% of girls in a juvenile
correctional care facility required care for an injury
acquired during incarceration. Almost half of these
injuries were associated with recreational or miscellaneous causes, whereas 20% were associated with
fighting, 13% were accidentally self-inflicted, and 9%
were intentionally self-inflicted.25
The high rate of mental health disorders among
juveniles is associated with a high rate of suicide and
suicide attempts during incarceration.26 The risk of
suicide is especially great for youths detained in
adult jails or lockups and for youths with a history of
psychiatric illnesses.27 A 1984 survey on health services for juveniles found that approximately 16% of
facilities reported at least 1 death during the preceding 5 years and that approximately 67% of those
deaths were suicides.28
Other common medical problems within the confined juvenile population include contagious diseases, somatic complaints, menstrual disorders, and
skin problems.6,29 In addition, youths may be victims
of physical and sexual abuse perpetrated by other
inmates or staff while incarcerated. Such incidents
may result from overcrowding, poor supervision or
behavioral management, excessive use of restraints
or isolation, or the stress of confinement.11
FINANCING CORRECTIONAL HEALTH CARE
SERVICES
Most funds used to pay for correctional health care
services are derived from the same budget pool as
those for operating the correctional institution. Other
sources of revenue include separate funds from
county or state health departments, grants for pilot
projects, and reimbursement for services provided.
Federal guidelines prohibit the portion of Medicaid
that comes from the federal government to be used
for health services within a correctional facility.
However, some states have been able to use state
Medicaid funds to provide services to adolescents
awaiting adjudication or for inpatient services.
HEALTH CARE STANDARDS—THE AMERICAN
ACADEMY OF PEDIATRICS RESPONSE AND THE
NATIONAL COMMISSION ON CORRECTIONAL
HEALTH CARE
Since 1973, the American Academy of Pediatrics
(AAP) has published policy statements about health
care for correctional care facilities.30,31 The AAP is 1
of more than 30 organizations represented on the
Board of Directors of the National Commission on
Correctional Health Care, a not-for-profit organization that comprises representatives from the fields of
corrections, law, law enforcement, and medical, dental, and mental health care. Its primary purpose is to
work with correctional facilities to assist in improving their systems for providing health care. The commission publishes national standards for correctional
health services, offers a voluntary accreditation program,32,33 and publishes official position statements.
801
Page 41 of 65
The standards are categorized into the following 6
sections that provide guidelines and an explanation
for implementation of each of the approximately 70
standards: 1) administration; 2) managing a safe and
healthy environment; 3) personnel; 4) care and treatment; 5) health records; and 6) medical-legal issues.
An updated Standards of Services in Juvenile Detention
and Confinement Facilities is available from the Commission.32
RECOMMENDATIONS
1. Children and adolescents confined in correctional
care facilities should be provided with health care
services as recommended by the AAP (Guidelines
for Health Supervision III34) and at least equivalent
to those accepted as standards of care in the community. Because many of these children and adolescents do not have a medical home, special
attention should be focused on immunization status, developmental and psychosocial issues, and
establishing a medical home before release.
2. Children and adolescents confined in correctional
care facilities should receive recommended comprehensive preventive pediatric and adolescent
health services during the period of incarceration.
The circumstance of incarceration can be used as
an opportunity to provide health maintenance for
the adolescent, including a complete medical history and physical and dental examinations; STD
testing for the most common pathogens, including
N gonorrhoeae and C trachomatis; and gynecologic
examinations for teenage girls. Other examinations should be conducted as needed and as ordered by the medical provider, including child
and adolescent psychiatry; psychopharmacology;
other mental health and substance abuse evaluations; neuropsychologic, educational, and projective testing; and pediatric neurology assessments.
Immunizations should be provided as recommended by the AAP, the Advisory Committee on
Immunization Practices of the Centers for Disease
Control and Prevention, and the American Academy of Family Physicians.35
3. Prenatal services, parenting classes, and tobacco,
alcohol, and drug cessation programs should be
available for males and females during their period of incarceration.
4. Pediatricians and adolescent health care specialists should be consulted about health care policies
and procedures governing all correctional care
facilities in which children and adolescents are
incarcerated.
5. Children and adolescents should be detained or
incarcerated only in facilities with developmentally appropriate programs (or structure) and staff
trained to deal with their unique needs. If children
and adolescents must be housed in adult correctional care facilities, they should be separated
from the adult population by sight and sound and
provided with a developmentally appropriate environment.
6. Pediatricians should work with their AAP chapters, the juvenile justice sections of their state judiciary and bar associations, and state legislators
802
to make certain that the medical, educational, and
emotional needs of juveniles are appropriately addressed while they are confined and that appropriate state funding (including continued eligibility for Medicaid) is available for provision of these
needed services.
7. Pediatricians should encourage all correctional
care facilities to adopt and comply with the National Commission on Correctional Health Care’s
Standards for Health Services in Juvenile Detention
and Confinement Facilities.32
Committee on Adolescence, 2000 –2001
David W. Kaplan, MD, MPH, Chairperson
Ronald A. Feinstein, MD
Martin M. Fisher, MD
Jonathan D. Klein, MD, MPH
Luis F. Olmedo, MD
Ellen S. Rome, MD, MPH
W. Samuel Yancy, MD
Liaisons
Paula J. Adams Hillard, MD
American College of Obstetricians and
Gynecologists
Diane Sacks, MD
Canadian Pediatric Society
Glen Pearson, MD
American Academy of Child and Adolescent
Psychiatry
Section Liaisons
Barbara L. Frankowski, MD, MPH
Section on School Health
Staff
Tammy Piazza Hurley
REFERENCES
1. Parent DG. Conditions of Confinement: Juvenile Detention and Corrections
Facilities. Research Summary. Washington, DC: Office of Juvenile Justice
and Delinquency Prevention, US Department of Justice; 1994
2. Snyder HN, Sickmund M. Juvenile Offenders and Victims: 1999 National
Report. Washington, DC: Office of Juvenile Justice and Delinquency
Prevention, US Department of Justice; 1999
3. Strom KJ. Profile of State Prisoners Under Age 18, 1985–97 (Fact Sheet).
Washington, DC: Office of Justice Programs, US Department of Justice;
2000
4. Snyder HN. Juvenile Arrests, 1996. Washington, DC: Office of Juvenile
Justice and Delinquency Prevention, US Department of Justice; 1997
5. Acoca L. Investing in Girls: A 21st Century Strategy. Washington, DC:
Office of Juvenile Justice and Delinquency Prevention, US Department
of Justice; 1999
6. Hein K, Cohen MI, Litt IF, et al. Juvenile detention: another boundary
issue for physicians. Pediatrics. 1980;66:239 –245
7. Feinstein RA, Lampkin A, Lorish CD, Klerman LV, Maisiak R, Oh MK.
Medical status of adolescents at time of admission to a juvenile detention center. J Adolesc Health. 1998;22:190 –196
8. Morris RE, Harrison EA, Knox GW, Tromanhauser E, Marquis DK,
Watts LL. Health risk behavioral survey from 39 juvenile correctional
facilities in the United States. J Adolesc Health. 1995;17:334 –344
9. Shafer MS, Hilton JF, Ekstrand M, et al. Relationship between drug use
and sexual behaviors and the occurrence of sexually transmitted diseases among high-risk male youth. Sex Transm Dis. 1993;20:307–313
10. Oh MK, Cloud GA, Wallace LS, Reynolds J, Sturdevant M, Feinstein
RA. Sexual behavior and sexually transmitted diseases among male
adolescents in detention. Sex Transm Dis. 1994;21:127–132
11. American Medical Association, Council on Scientific Affairs. Health
status of detained and incarcerated youths. JAMA. 1990;263:987–991
12. Oh MK, Smith KR, O’Cain M, Kilmer D, Johnson J, Hook EW III.
Urine-based screening of adolescents in detention to guide treatment
for gonococcal and chlamydial infections. Arch Pediatr Adolesc Med.
1998;152:52–56
13. Centers for Disease Control and Prevention. High prevalence of chla-
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14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
mydial and gonococcal infection in women entering jails and juvenile
detention centers: Chicago, Birmingham and San Francisco, 1998.
MMWR Morb Mortal Wkly Rep. 1999;48:793–796
Snell TL, Morton DC. Women in Prison: Survey of State Prison Inmates.
1991. Washington, DC: Bureau of Justice Statistics, US Department of
Justice; 1994
Breuner CC, Farrow JA. Pregnant teens in prison: prevalence, management, and consequences. West J Med. 1995;162:328 –330
Nesmith JD, Klerman LV, Oh MK, Feinstein RA. Procreative experiences and orientations toward paternity held by incarcerated males. J
Adolesc Health. 1997;20:198 –203
Widom R, Hammett TM. HIV/AIDS and STD in Juvenile Facilities. Washington, DC: National Institute of Justice, US Department of Justice; 1996
Cocozza JJ, ed. Responding to the Mental Health Needs of Youth in the
Juvenile Justice System. Seattle, WA: National Coalition for the Mentally
Ill in the Criminal Justice System; 1992
Steiner H, Garcia IG, Matthews Z. Posttraumatic stress disorder in
incarcerated juvenile delinquents. J Am Acad Child Adolesc Psychiatry.
1997;36:357–365
Yeager CA, Lewis DO. Mortality in a group of formerly incarcerated
juvenile delinquents. Am J Psychiatry. 1990;147:612– 614
Callahan CM, Rivara FP. Urban high school youth and handguns: a
school-based survey. JAMA. 1992;267:3038 –3042
Callahan CM, Rivara FP, Farrow JA. Youth in detention and handguns.
J Adolesc Health. 1993;14:350 –355
National Institute of Justice. 1995 Drug Use Forecasting: Annual Report on
Adult and Juvenile Arrestees. Washington, DC: National Institute of Justice, US Department of Justice; 1996
Crowe AH. Drug Identification and Testing in the Juvenile Justice System.
Washington, DC: Office of Juvenile Justice and Delinquency Prevention,
US Department of Justice; 1998
Woolf A, Funk SG. Epidemiology of trauma in a population of incar-
cerated youth. Pediatrics. 1985;75:463– 468
26. Miller ML, Chiles JA, Barnes VE. Suicide attempters within a delinquent
population. J Consult Clin Psychol. 1982;50:491– 498
27. Flaherty MG. An Assessment of the Incidence of Juvenile Suicide in Adult
Jails, Lockups, and Juvenile Detention Centers. Urbana-Champaign, IL:
Community Research Forum, University of Illinois at UrbanaChampaign; and Washington, DC: Dept of Justice, Office of Juvenile
Justice and Delinquency Prevention; 1980
28. Anno BJ. Availability of health services for juvenile offenders: results on
a national survey. J Prison Jail Health. 1984;4:77–90
29. Anderson B, Farrow JA. Incarcerated adolescents in Washington state:
health services and utilization. J Adolesc Health. 1998;22:363–367
30. American Academy of Pediatrics, Committee on Youth. Health standards for juvenile court residential facilities. Pediatrics. 1973;52:452– 457
31. American Academy of Pediatrics, Committee on Adolescence. Health
care for children and adolescents in detention centers, jails, lock-ups,
and other court-sponsored residential facilities. Pediatrics. 1989;84:
1118 –1120
32. National Commission on Correctional Health Care (US). Standards for
Health Services in Juvenile Detention and Confinement Facilities. Chicago,
IL: National Commission on Correctional Health Care; 1999
33. National Commission on Correctional Health Care. Health services to
adolescents in adult correctional facilities [position statement]. Available at: http://www.ncchc.org/statements.html. Accessed November
5, 1999
34. American Academy of Pediatrics, Committee on Psychosocial Aspects
of Child and Family Health. Guidelines for Health Supervision III. 3rd ed.
Elk Grove Village, IL: American Academy of Pediatrics; 1997
35. American Academy of Pediatrics, Committee on Infectious Diseases.
Recommended childhood immunization schedule—United States,
January–December 2001. Pediatrics. 2001;107:202–204
803
Page 43 of 65
Juvenile Justice and Delinquency Prevention
Social Work Speaks Abstracts
Public demand to get “tough on crime” has undermined the key concept of the juvenile court
system — that children are developmentally different from adults and therefore more amenable
to treatment and rehabilitation. NASW recommends that children and youths who enter the
juvenile justice system be treated differently from adults through every phase, including
prevention, early intervention, diversion, detention, probation, residential care, incarceration
and postrelease care. Without an effective and responsive screening, assessment, treatment,
and aftercare protocol, children progressively move through stages of delinquency
development and ongoing adult criminal behavior.
Click here to order the
complete volume of
The United States prosecutes 200,000 youths a year in adult criminal court and 67 percent of
them are African American. Moreover, 77 percent of juveniles sent to adult prison are African
statements.
American. More than half of cases transferred to adult criminal court in 1996 were nonviolent
drug or property offenses, according to a 2001 report by The Sentencing Project. Youths
adjudicated in the adult criminal justice system are rearrested more often, sooner and for more serious crimes than
counterparts treated in the juvenile court system. Therefore, NASW opposes the incarceration of all youths under the age of
18 in the adult criminal justice system.
NASW public policy
Particularly at risk are African American youths, who face inequitable treatment through the lack of family services, lack of
culturally competent screening and treatment, and inadequate defense for those who are indigent. Therefore, very early on, in
elementary schools or on initial involvement with the juvenile system, oversight measures should be established to prevent the
cumulative effect of inequitable treatment of these youths. Broader efforts are needed to strengthen communities’ protective
factors against juvenile delinquency. Among these would be community-building efforts led by citizens — including children
and adolescents — who have a stake in neighborhoods afflicted with juvenile delinquency. These efforts would address
related concerns such as housing, living wage employment, and child care, which have a documented effect on the social
organization of disadvantaged neighborhoods.
When youths, despite these other efforts, must be incarcerated, they should be kept in close proximity to their families; state
correctional systems should be replaced by local systems of community-based care. Before being returned to the community,
they should have an effective postrelease plan including extensive aftercare programming.
Finally, NASW opposes the death penalty for juveniles, just as it opposes capital punishment for adults. The execution of
youths under the age of 18 violates international standards for humane and ethical treatment of children, including the United
http://www.naswdc.org/resources/abstracts/abstracts/juvenile.asp?print=1 (1 of 2) [11/17/2009 9:25:58 PM]
Page 44 of 65
Nations Convention.
http://www.socialworkers.org/resources/abstracts/abstracts/juvenile.asp
National Association of Social Workers
750 First Street, NE • Suite 700 • Washington, DC 20002-4241
©2006 National Association of Social Workers. All Rights Reserved.
11/17/2009
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Page 45 of 65
USCCB - (SDWP) - Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice
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Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime
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Issued by USCCB, November 15, 2000
Copyright © 2000, United States Conference of Catholic Bishops, Inc. All rights reserved.
Order Copies of This Statement
Issue Campaigns
Catholic Campaign for
Human Development
International Issues
Domestic Issues
Catholic Social Teaching
A Statement of the Catholic Bishops of the United States
We are still a long way from the time when our conscience can be certain of having done everything possible to
prevent crime and to control it effectively so that it no longer does harm and, at the same time, to offer to those
who commit crimes a way of redeeming themselves and making a positive return to society. If all those in some
way involved in the problem tried to . . . develop this line of thought, perhaps humanity as a whole could take a
great step forward in creating a more serene and peaceful society.
Pope John Paul II, July 9, 2000
Catholic Teaching on
Economic Life
Catholic Social Ministry
Gathering
Meetings, Events, Trainings
For Priests and Deacons
Table of Contents
■
For Parishes
For Educators
Links
About Us
Marriage and Family Life
■
Pro-Life
JPHD Home
■
Introduction
Crime and the Catholic Community
Some Dimensions of Crime and Punishment in the United States
Victims of Crime in the United States
Punishment in the United States
Characteristics of the Inmate Population
Detention of Immigrants
Offenders and Treatment
Scriptural, Theological, and Sacramental Heritage
Scriptural Foundations
Sacramental and Historical Heritage
Human Life and Dignity
Human Rights and Responsibilities
Family, Community, and Participation
The Common Good
The Option for the Poor and Vulnerable
Subsidiarity and Solidarity
Policy Foundations and Directions
Protecting Society
Rejecting Simplistic Solutions
Promoting Serious Efforts Toward Crime Prevention and Poverty Reduction
Challenging the Culture of Violence
Offering Victims the Opportunity to Participate
http://www.usccb.org/sdwp/criminal.shtml (1 of 18) [11/17/2009 9:44:42 PM]
Page 46 of 65
Encouraging Innovative Programs
Insisting That Punishment Has a Constructive Purpose
Encouraging Spiritual Healing and Renewal
Making a Serious Commitment to Confront Addiction
Treating Immigrants Justly
Placing Crime in a Community Context
■
The Church's Mission
Teach Right from Wrong, Respect for Life, Forgiveness and Mercy
Stand With Victims and Their Families
Reach Out to Offenders and Their Families
Build Community
Advocate Policies That Offer Real Alternatives to Crime
Organize Diocesan Consultations
Work for New Approaches
■
Conclusion
■
Appendix: Suggestions for Action
Introduction
As Catholic bishops, our response to crime in the United States is a moral test for our nation and a challenge for our Church. Although
the FBI reports that the crime rate is falling, crime and fear of crime still touch many lives and polarize many communities. Putting more
people in prison and, sadly, more people to death has not given Americans the security we seek. It is time for a new national dialogue on
crime and corrections, justice and mercy, responsibility and treatment. As Catholics, we need to ask the following: How can we restore
our respect for law and life? How can we protect and rebuild communities, confront crime without vengeance, and defend life without
taking life? These questions challenge us as pastors and as teachers of the Gospel.
Our tasks are to restore a sense of civility and responsibility to everyday life, and promote crime prevention and genuine rehabilitation.
The common good is undermined by criminal behavior that threatens the lives and dignity of others and by policies that seem to give up
on those who have broken the law (offering too little treatment and too few alternatives to either years in prison or the execution of those
who have been convicted of terrible crimes).
New approaches must move beyond the slogans of the moment (such as "three strikes and you're out") and the excuses of the past
(such as "criminals are simply trapped by their background"). Crime, corrections, and the search for real community require far more than
the policy clichés of conservatives and liberals.
A Catholic approach begins with the recognition that the dignity of the human person applies to both victim and offender. As bishops, we
believe that the current trend of more prisons and more executions, with too little education and drug treatment, does not truly reflect
Christian values and will not really leave our communities safer. We are convinced that our tradition and our faith offer better alternatives
that can hold offenders accountable and challenge them to change their lives; reach out to victims and reject vengeance; restore a sense
of community and resist the violence that has engulfed so much of our culture.
Crime and the Catholic Community
Many of our parishes dramatically reflect the human and other costs of so
much crime. The church doors are locked; the microphones hidden. Parishes
spend more on bars for their windows than on flowers for their altars. More
tragically, they bury young people caught in gang violence, the drug trade, or
the hopelessness that leads children to take their own lives. These parishes
reach out to prisoners and their families, offering help and hope to those
caught up in crime and the criminal justice system. They also struggle to
respond to the needs of crime victims: the parents who lose a child, the
elderly woman who is mugged, the shopkeeper who is robbed, the child
whose parent is in jail.
As bishops, teachers, and pastors, we seek to offer a perspective inspired by
our Catholic tradition to the national discussion on crime. For us, crime and
the destruction it brings raise fundamental questions about the nature of
personal responsibility, community, sin, and redemption. A distinctively
Catholic approach to these questions can offer society another way to
understand and respond to crime, its victims, and its perpetrators. We
approach this topic, however, with caution and modesty. The causes of crime
are complex. The ways to overcome violence are not simple. The chances of
being misunderstood are many.
In developing these reflections, we have consulted with Catholics who are
involved in every aspect of the criminal justice system: prison chaplains,
police officers, prosecutors, defense attorneys, judges, probation and parole
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officers, wardens, correctional officers, crime victims, offenders, families of
both victims and offenders, and treatment personnel. In our parishes, schools,
and Catholic Charities agencies, Catholics see firsthand the crushing poverty
and the breakdown of family life that often lead to crime and at the same time
care for prisoners, victims, and their families. All of their experience and
wisdom has been helpful to us.
As bishops, we
offer a word of
thanks and
support to those
who devote their
lives and talents to the tasks of protection and restoration: chaplains and
prison ministry volunteers, police and corrections officers, prosecutors and
defense attorneys, and counselors. We call on others to join them in a new
commitment to prevent crime and to rebuild lives and communities. As
ordained ministers committed to service, deacons should be especially drawn
to the challenge of Matthew 25: "For I was . . . in prison and you visited me."
We also wish to stand in solidarity with crime victims in their pain and loss,
insisting that all our institutions reach out to them with understanding,
compassion, and healing.
Many Catholics help to prevent and control crime, especially among our
youth. No one can take the place of parents, but grandparents, pastors,
coaches, teachers, mentors, as well as neighbors, parishioners, and
community leaders all help to guide, confront, and care for young people at
risk.
At the same time, we cannot ignore the fact that some Catholics have been
convicted of theft and drug dealing, spousal and child abuse, even rape and
murder. In fact, it is reported that more than thirty-seven thousand federal
prisoners (30 percent of the federal inmate population)1 are baptized Catholic,
many more Catholics are in local jails and state prisons, and hundreds of
thousands are on probation or parole. Catholics can also be found among
white-collar criminals whose illegal actions in businesses, financial markets,
and government halls seriously damage our common life and economic stability.
All those whom we consulted seemed to agree on one thing: the status quo is not really working—victims are often ignored, offenders are
often not rehabilitated, and many communities have lost their sense of security. All of these committed people spoke with a sense of
passion and urgency that the system is broken in many ways. We share their concern and believe that it does not live up to the best of
our nation's values and falls short of our religious principles.
In light of this, we seek to do the following in these reflections:
●
●
●
●
Explore aspects of crime and punishment in our society
Examine the implications of the Church's teaching for crime and punishment
Apply principles of Catholic social teaching to the criminal justice system and suggest some directions for policy on crime and
punishment
Encourage action by Catholics to shape new alternatives
Some Dimensions of Crime and Punishment in the United States
Although overall crime rates in the United States rose significantly between 1960 and 1991, the crime and victimization rates have fallen
steadily since that time.2 Why criminal activity has dropped in the last decade has been the subject of considerable debate. Some argue
that high incarceration rates and tougher sentences have made the difference. Others point to community policing, economic prosperity,
and fewer young people. Experts do not agree on the determining factors, suggesting that many forces, taken together, have contributed
to this decline. But regardless of their impact, not all methods of reducing crime are consistent with the teachings of the Church and the
ideals of our nation. For example, even if the death penalty were proven to be a deterrent to crime, the Catholic bishops would still
oppose its use because there are alternative means to protect society available to us today.
Victims of Crime in the United States: In 1998, about one out of every twenty-seven Americans over the age of twelve
was the victim of a violent crime (e.g., murder, rape/sexual assault, robbery, aggravated and simple assault) and approximately one out
of every four American households suffered a property crime (e.g., household burglary, auto theft).3 African Americans and Hispanic
Americans have been victimized at far higher rates than others. For example, in 1990, the murder rate for young black men was 140
victims per 100,000—seven times the rate for young white men.4
Also affected by crime are the children left behind by incarcerated parents—children who themselves are at risk for criminal activity. One
and one-half million children under the age of eighteen (or 2.1 percent) have a parent in state or federal prison. Of these, 22 percent are
under the age of five and 58 percent are less than ten. Most of the parents (92.6 percent) are fathers, and most are disproportionately
African American (49.4 percent) and Hispanic American (18.9 percent). African American children are nine times more likely to have a
parent incarcerated (7 percent) than white children (0.8 percent), and Hispanic American children are three times as likely (2.6 percent)
as white children.5
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In response to so much crime and the treatment of those touched by crime, a strong and growing movement has emerged that advocates
on behalf of crime victims and seeks to make the justice system more responsive to their concerns.6 We believe that these efforts
deserve support. We encourage and stand with victims and those who assist them. A fundamental moral measure of the criminal justice
system is how it responds to those harmed by crime. Too often, the criminal justice system neglects the hurt and needs of victims or
seeks to exploit their anger and pain to support punitive policies.
Not victims in the usual sense but certainly personally affected by crime are peace officers and those who work in correctional facilities.
This is difficult work especially for those who work on death row and participate in executions in the regular course of their duties. They
too are often in need of healing and compassion. We support steps to educate, train, evaluate, and counsel peace officers, consistent
with a culture of life.
White-collar crime also costs our society in major ways. It is reported that the average business enterprise loses more than $9 a day per
employee to fraud and abuse or about 6 percent of its total annual revenue. More than $400 billion is lost annually to U.S. businesses
and government by fraud and abuse.7 These crimes often go unacknowledged and unpunished, but they can have a devastating impact
on employees, investors, consumers, and taxpayers who pay the price for corruption and dishonesty. We all lose when industries fail to
obey the laws that ensure that the land, water, and air are not harmed. People in positions of power and responsibility have particular
obligations to live within the law and not to enrich themselves at the expense of others.
Punishment in the United States: The many forms of punishment for those who are convicted of crime in the United
States vary, ranging from fines and probation to boot camps and chain gangs, to incarceration in jails and prisons, and finally to the death
penalty. In 1998, the imprisonment rate in America was 668 per 100,000 offenders. This is six to twelve times higher than the rate of
other Western countries.8 This astounding rate of incarceration is due to policies such as "three strikes and you're out" and "zerotolerance" for drug offenders.9 As incarceration rates have increased, so have other punitive measures. Mandatory minimum sentences
are much more common as is the willingness to use isolation units. As of 1997, thirty-six states and the federal government have
constructed "supermax" prisons.10 These facilities isolate prisoners considered most dangerous and confine them to small cells by
themselves for twenty-two to twenty-four hours each day. Additionally, the death penalty is being used with increasing frequency. In
Texas and Virginia alone, nearly three hundred executions have taken place since 1976, many of them within the last three years. And in
California well over five hundred people are on death row. These statistics and policies reflect legislative action at the federal and state
levels that is adopted by legislators seeking to appear "tough on crime" in response to often sensational media coverage of crime.
The United States spends more than $35 billion annually on corrections. In many states, education, health and human services, and
public transportation budgets remain stagnant or decline while more and more prisons are built.11 Also suffering from a diversion of public
dollars for prison construction are the very critical programs of probation and parole, halfway houses, community treatment options, and
other post-release programs. For some small towns facing losses in agriculture, mining, or manufacturing, the economic benefits from
building a prison and offering related services are seen as economic development creating vital new jobs.12 Rural communities may not
have the social or physical infrastructure to handle either the facility itself, the needs of the inmate's family, or the needs of the staff. But
public debate rarely encourages serious dialogue about the costs of incarceration versus less costly alternatives, such as prevention,
education, community efforts, and drug treatment.
Characteristics of the Inmate Population: The inmate population has risen from 250,000 in 1972 to a record two
million inmates in 2000. Just as African and Hispanic Americans are victimized at higher rates, so too, are they incarcerated at higher
rates:
●
●
African Americans make up 12 percent of the U.S. population but represent more than 49 percent of prisoners in state and
federal prisons.13 Nationally, one in ten African American males is in prison, on probation, or on parole.14
Hispanic Americans make up 9 percent of the U.S. population but 19 percent of prisoners in state and federal prisons.15
Recent studies show that African, Hispanic, and Native Americans are often treated more harshly than other citizens in their encounters
with the criminal justice system (including police activity, the handling of juvenile defendants, and prosecution and sentencing).16 These
studies confirm that the racism and discrimination that continue to haunt our nation are reflected in similar ways in the criminal justice
system.
Prison inmates have high rates of substance abuse, illiteracy, and mental
illness. According to the Department of Justice, nearly two million people are
behind bars, of whom
●
●
●
24 percent are incarcerated for drug offenses, and nearly half were
under the influence of drugs or alcohol when they committed the
crime17
70 percent did not complete high school
As many as 200,000 suffer from some form of mental illness18
While the vast majority of inmates in the United States are men, the number of
women being incarcerated has increased 600 percent since 1980, largely as a
result of tougher drug laws. This rate of increase is higher than the rate of
increase for men. Seventy percent of female inmates are non-violent
offenders, and an equal number have left children behind, often in foster care,
as they enter prison.19
Detention of Immigrants: We bishops have a long history of
supporting the rights of immigrants. Therefore, the special circumstances of
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immigrants in detention centers is of particular concern. The Immigration and
Naturalization Service (INS) uses a variety of methods to detain immigrants,
some of them clearly inappropriate, such as placing detainees in prisons with
convicted felons or in local jails where conditions are deplorable.
Recently enacted laws have resulted in the tripling of the number of noncitizens incarcerated and awaiting deportation, including women and
minors.20 Now the INS is required to detain and deport immigrants who have
committed an offense in the past, even if they have served a sentence for that
offense and are now contributing members of society. Many of these people
(an estimated five thousand out of the estimated twenty thousand immigrants
under INS detention) spend months or even years in detention centers because they are refused repatriation by their countries of origin.
Others languish because they are victims of an overwhelmed INS bureaucracy. These lengthy stays place considerable hardship on
other family members living in the United States or in their country of origin, many of whom have depended on the income of the person
incarcerated.
Additionally, new rules allow for "expedited removal" of those seeking asylum—a process whereby INS officials turn away those fleeing
persecution in their home countries. Those not quickly returned are placed in detention centers for weeks or even months until they
receive an asylum hearing.
Offenders and Treatment: Since the 1970s, a considerable debate has developed in the United States about whether
treatment programs work and to what extent.21 Careful reviews of the literature on rehabilitation have concluded that treatment does
reduce recidivism. No single type of treatment or rehabilitation program, however, works for every offender. The effectiveness of
programs depends on many things, including type of offense, quality of the program, and family, church, and community support.
One area of criminal activity that seems to respond to treatment is substance abuse. More is being learned about how substance abuse
and crime are linked in the United States. According to a National Institute of Justice report, at the time of their arrest two-thirds of adults
and half of juveniles tested positive for at least one drug.22 Recent nationwide studies have concluded that drug treatment is reducing
drug use, criminal activity, and physical and mental health problems, as well as increasing employment potential.23
These research studies also suggest that drug treatment is a very cost-effective method to reduce substance abuse and crime.24 The
savings to tax payers from quality substance abuse treatment versus imprisonment is significant (three to one in a recent RAND
Corporation study).25 Furthermore, community-based substance abuse programs and programs that address behaviors that lead people
to crime are far less expensive than similar programs in prison and produce effective and encouraging results.26 Finally, new studies
confirm what our pastoral experience has demonstrated: that physical, behavioral, and emotional healing happens sooner and with more
lasting results if accompanied by spiritual healing.27 Access to worship and religious formation is not only guaranteed by the Constitution,
it is a significant element in rebuilding lives and changing behavior.
We now turn our attention to our Catholic tradition and examine how it might help frame our nation's responses to crime.
Scriptural, Theological, and Sacramental Heritage
Every day Christians pray for justice and mercy in the prayer that Jesus taught us: "Thy kingdom come, thy will be done, on earth as it is
in heaven." Every day Christians recognize both that we are guilty of sin and that we are forgiven: "Forgive us our trespasses as we
forgive those who trespass against us." This common prayer, the Lord's Prayer, recognizes our failures and offenses, and acknowledges
our dependence on God's love and mercy.
Our Catholic faith can help us and others to go beyond the current debate and gain a deeper understanding of how to reject crime, help
heal its victims, and pursue the common good. We wish to move away from the so-called "soft" or "tough" approaches to crime and
punishment offered by those at opposite ends of the political spectrum.
St. Paul outlined our task when he told us to "test everything; retain what is good. Refrain from every kind of evil" (1 Thes 5:21). He calls
us to affirm the demands of both justice and mercy, the place of punishment and forgiveness, and the reality of free will and poor choices.
In the United States, history tells us that the prison system was, in some
ways, built on a moral vision of the human person and society—one that
combined a spiritual rekindling with punishment and correction.28 But along
the way, this vision has too often been lost. The evidence surrounds us:
sexual and physical abuse among inmates and sometimes by corrections
officers, gang violence, racial division, the absence of educational
opportunities and treatment programs, the increasing use of isolation units,
and society's willingness to sentence children to adult prisons—all contributing
to a high rate of recidivism. Our society seems to prefer punishment to
rehabilitation and retribution to restoration thereby indicating a failure to
recognize prisoners as human beings.
In some ways, an approach to criminal justice that is inspired by a Catholic
vision is a paradox. We cannot and will not tolerate behavior that threatens
lives and violates the rights of others. We believe in responsibility,
accountability, and legitimate punishment. Those who harm others or damage
property must be held accountable for the hurt they have caused. The
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community has a right to establish and enforce laws to protect people and to
advance the common good.
At the same time, a Catholic approach does not give up on those who violate these laws. We believe that both victims and offenders are
children of God. Despite their very different claims on society, their lives and dignity should be protected and respected. We seek justice,
not vengeance. We believe punishment must have clear purposes: protecting society and rehabilitating those who violate the law.
We believe a Catholic vision of crime and criminal justice can offer some alternatives. It recognizes that root causes and personal choices
can both be factors in crime by understanding the need for responsibility on the part of the offender and an opportunity for their
rehabilitation. A Catholic approach leads us to encourage models of restorative justice that seek to address crime in terms of the harm
done to victims and communities, not simply as a violation of law.
Scriptural Foundations
The Old Testament provides us with a rich tradition that demonstrates both God's justice and mercy. The Lord offered to his people Ten
Commandments, very basic rules for living from which the Israelites formed their own laws in a covenant relationship with God.
Punishment was required, reparations were demanded, and relationships were restored. But the Lord never abandoned his people
despite their sins. And in times of trouble, victims relied on God's love and mercy, and then on each other to find comfort and support (Is
57:18-21; Ps 94:19).
Just as God never abandons us, so too we must be in covenant with one another. We are all sinners, and our response to sin and failure
should not be abandonment and despair, but rather justice, contrition, reparation, and return or reintegration of all into the community.
The New Testament builds on this tradition and extends it. Jesus
demonstrated his disappointment with those who oppressed others (Mt 23)
and those who defiled sacred spaces (Jn 2). At the same time, he rejected
punishment for its own sake, noting that we are all sinners (Jn 8). Jesus also
rejected revenge and retaliation and was ever hopeful that offenders would
transform their lives and turn to be embraced by God's love.
Jesus, who himself was a prisoner, calls us to visit the imprisoned and to take
care of the sick (including victims of crime), the homeless, and the hungry (Mt
25). His mission began with proclaiming good news to the poor and release to
captives (Lk 4). In our day, we are called to find Christ in young children at
risk, troubled youth, prisoners in our jails and on death row, and crime victims
experiencing pain and loss.
The story of the Good Samaritan (Lk 10), who did all he could to help a victim of crime, a stranger, is a model for us today. We must be
willing to stop and help victims of crime recover from their physical and emotional wounds.
The parable of the Prodigal Son (Lk 15) shows God's love for us and models how we should love one another. In spite of his younger
son's reckless life and squandering of his inheritance, the father celebrates his return home, recognizing that his son has shown contrition
and has changed his life. The lost who have been found are to be welcomed and celebrated, not resented and rejected. Pope John Paul
II said
What Christ is looking for is trusting acceptance, an attitude which opens the mind to generous decisions aimed at rectifying the evil done
and fostering what is good. Sometimes this involves a long journey, but always a stimulating one, for it is a journey not made alone, but in
the company of Christ himself and with his support. . . . He never tires of encouraging each person along the path to salvation.29
Sacramental and Historical Heritage
Our sacramental life can help us make sense of our paradoxical approach to crime and punishment. The sacraments of Penance and the
Eucharist are real encounters with the Saving Lord and central Catholic signs of true justice and mercy. Sinners are encouraged to take
responsibility and make amends for their sins; yet we never give up hope that they can be forgiven and rejoin the community.
The four traditional elements of the sacrament of Penance have much to teach us about taking responsibility, making amends, and
reintegrating into community:
●
●
●
●
Contrition: Genuine sorrow, regret, or grief over one's wrongs and a serious resolution not to repeat the wrong
Confession: Clear acknowledgment and true acceptance of responsibility for the hurtful behavior
Satisfaction: The external sign of one's desire to amend one's life (this "satisfaction," whether in the form of prayers or
good deeds, is a form of "compensation" or restitution for the wrongs or harms caused by one's sin)
Absolution: After someone has shown contrition, acknowledged his or her sin, and offered satisfaction, then Jesus,
through the ministry of the priest and in the company of the church community, forgives the sin and welcomes that person back
into "communion"
Centuries ago, St. Thomas Aquinas taught us that punishment of wrongdoers is clearly justified in the Catholic tradition, but is never
justified for its own sake. A compassionate community and a loving God seek accountability and correction but not suffering for its own
sake. Punishment must have a constructive and redemptive purpose.
Today these traditional teachings still shape our understanding of punishment. We begin with a belief in the existence of a natural moral
law that resides within the hearts of individuals and within the life of the community. This moral code is common to all peoples and is
never fully excused by external circumstances. All are born with free will that must be nurtured and informed by spiritual, intellectual,
emotional, and physical disciplines and by the community. Although not everyone has the same ability to exercise free will, each person
is responsible for and will be judged by his or her actions according to the potential that has been given to him or her. We believe that it is
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God who ultimately judges a person's motivation, intention, and the forces that shaped that person's actions.
Catholic social teaching offers directions as well as measures for our response to crime and criminal justice.
Human Life and Dignity: The fundamental starting point for all of Catholic social teaching is the defense of human life and
dignity: every human person is created in the image and likeness of God and has an inviolable dignity, value, and worth, regardless of
race, gender, class, or other human characteristics. Therefore, both the most wounded victim and the most callous criminal retain their
humanity. All are created in the image of God and possess a dignity, value, and worth that must be recognized, promoted, safeguarded,
and defended. For this reason, any system of penal justice must provide those necessities that enable inmates to live in dignity: food,
clothing, shelter, personal safety, timely medical care, education, and meaningful work adequate to the conditions of human dignity.30
Human dignity is not something we earn by our good behavior; it is something we have as children of God. We believe that because we
are all created by God, "none of us is the sum total of the worst act we have ever committed. . . . As a people of faith, we believe that
grace can transform even the most hardened and cruel human beings."31
Victims, too, must have the help of the faith community in recovering their dignity. To be excluded from the proceedings against their
offenders, to be ignored by friends and family, or to be neglected by the community of faith because their deep pain is unsettling only
serves to further isolate victims and denies their dignity. All of us are called to stand with victims in their hurt and in their search for
healing and genuine justice. This includes, of course, the children of the incarcerated, who themselves are seriously harmed by their
parents' misdeeds.
Human Rights and Responsibilities: Our tradition insists that every person has both rights and responsibilities. We have
the right to life and to those things that make life human: faith and family, food and shelter, housing and health care, education and
safety. We also have responsibilities to ourselves, to our families, and to the broader community.
Crime and corrections are at the intersection of rights and responsibilities.
Those who commit crimes violate the rights of others and disregard their
responsibilities. But the test for the rest of us is whether we will exercise our
responsibility to hold the offender accountable without violating his or her
basic rights. Even offenders should be treated with respect for their rights.
Family, Community, and Participation: We believe the
human person is social. Our dignity, rights, and responsibilities are lived out in
relationship with others, and primary among these is the family. The
disintegration of family life and community has been a major contributor to
crime. Supporting and rebuilding family ties should be central to efforts to
prevent and respond to crime. Placing prisons in remote areas diminishes
contacts with close relatives and undermines the family connections that could
aid in restoration, especially for young offenders.
Likewise, maintaining community and family connections can help offenders
understand the harm they've done and prepare them for reintegration into
society. Isolation may be necessary in some rare cases; but while cutting off
family contact can make incarceration easier for those in charge, it can make
reintegration harder for those in custody.
The principle of participation is especially important for victims of crime.
Sometimes victims are "used" by the criminal justice system or political
interests. As the prosecution builds a case, the victim's hurt and loss can be
seen as a tool to obtain convictions and tough sentences. But the victim's
need to be heard and to be healed are not really addressed.
The Common Good: The social dimension of our teaching leads us
to the common good and its relationship to punishment. According to the
Catechism of the Catholic Church, punishment by civil authorities for
criminal activity should serve three principal purposes: (1) the preservation
and protection of the common good of society, (2) the restoration of public
order, and (3) the restoration or conversion of the offender.32
The concept of "redress," or repair of the harm done to the victims and to
society by the criminal activity, is also important to restoring the common
good. This often neglected dimension of punishment allows victims to move
from a place of pain and anger to one of healing and resolution. In our
tradition, restoring the balance of rights through restitution is an important
element of justice.
The Option for the Poor and Vulnerable: This principle of Catholic social teaching recognizes that every public policy
must be assessed by how it will affect the poorest and most vulnerable people in our society. Sometimes people who lack adequate
resources from early in life (i.e., children—especially those who have been physically, sexually, or emotionally abused—the mentally ill,
and people who have suffered discrimination) turn to lives of crime in desperation or out of anger or confusion. Unaddressed needs—
including proper nutrition, shelter, health care, and protection from abuse and neglect—can be steppingstones on a path towards crime.
Our role as Church is to continually work to address these needs through pastoral care, charity, and advocacy.
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Subsidiarity and Solidarity: These two related principles recognize that human dignity and human rights are fostered in
community. Subsidiarity calls for problem-solving initially at the community level: family, neighborhood, city, and state. It is only when
problems become too large or the common good is clearly threatened that larger institutions are required to help. This principle
encourages communities to be more involved. Criminal activity is largely a local issue and, to the extent possible, should have local
solutions. Neighborhood-watch groups, community-oriented policing, school liaison officers, neighborhood treatment centers, and local
support for ex-offenders all can be part of confronting crime and fear of crime in local communities.
Solidarity recognizes that "we are all really responsible for all."33 Not only are we responsible for the safety and well-being of our family
and our next-door neighbor, but Christian solidarity demands that we work for justice beyond our boundaries. Christians are asked to see
Jesus in the face of everyone, including both victims and offenders. Through the lens of solidarity, those who commit crimes and are hurt
by crime are not issues or problems; they are sisters and brothers, members of one human family. Solidarity calls us to insist on
responsibility and seek alternatives that do not simply punish, but rehabilitate, heal, and restore.
Policy Foundations and Directions
In light of this moral framework, we seek approaches that understand crime as a threat to community, not just a violation of law; that
demand new efforts to rebuild lives, not just build more prisons; and that demonstrate a commitment to re-weave a broader social fabric
of respect for life, civility, responsibility, and reconciliation. New approaches should be built on the following foundations:
1. Protecting society from those who threaten life, inflict harm, take property, and
destroy the bonds of community.
The protection of society and its members from violence and crime is an essential moral value. Crime, especially violent crime,
not only endangers individuals, but robs communities of a sense of well-being and security, and of the ability to protect their
members. All people should be able to live in safety. Families must be able to raise their children without fear. Removing
dangerous people from society is essential to ensure public safety. And the threat of incarceration does, in fact, deter some
crime (e.g., tougher sanctions for drunk drivers along with a public education campaign seem to have dramatically reduced the
numbers of intoxicated drivers on our roadways34). However, punishment for its own sake is not a Christian response to crime.
Punishment must have a purpose. It must be coupled with treatment and, when possible, restitution.
2. Rejecting simplistic solutions such as "three strikes and you're out" and rigid
mandatory sentencing.
The causes of crime are complex and efforts to fight crime are complicated. One-size-fits-all solutions are often inadequate.
Studies and experience show that the combination of accountability and flexibility works best with those who are trying to
change their lives. To the extent possible, we should support community-based solutions, especially for non-violent offenders,
because a greater emphasis is placed on treatment and restoration for the criminal, and restitution and healing for the victim.
We must renew our efforts to ensure that the punishment fits the crime. Therefore, we do not support mandatory sentencing that
replaces judges' assessments with rigid formulations.
We bishops cannot support policies that treat young offenders as though they are adults. The actions of the most violent youth
leave us shocked and frightened and therefore they should be removed from society until they are no longer dangerous. But
society must never respond to children who have committed crimes as though they are somehow equal to adults—fully formed
in conscience and fully aware of their actions. Placing children in adult jails is a sign of failure, not a solution. In many instances,
such terrible behavior points to our own negligence in raising children with a respect for life, providing a nurturing and loving
environment, or addressing serious mental or emotional illnesses.
3. Promoting serious efforts toward crime prevention and poverty reduction.
Socio-economic factors such as extreme poverty, discrimination, and racism are serious contributors to crime. Sadly, racism
often shapes American attitudes and policies toward crime and criminal justice. We see it in who is jobless and who is poor, who
is a victim of crime and who is in prison, who lacks adequate counsel and who is on death row. We cannot ignore the fact that
one-fifth of our preschoolers are growing up in poverty and far too many go to bed hungry. Any comprehensive approach to
criminal justice must address these factors, but it should also consider the positive impact of strong, intact families. Parents have
a critical and irreplaceable role as primary guardians and guides of their children. One only has to observe how gangs often
provide young people with a sense of belonging and hope when grinding poverty and family disintegration have been their only
experience. And while it is true that many poor children who are products of dysfunctional families never commit crimes, poverty
and family disintegration are significant risk factors for criminal activity. Finally, quality education must be available for all
children to prepare them for gainful employment, further education, and responsible citizenship. The failure of our education
system in many communities contributes to crime. Fighting poverty, educating children, and supporting families are essential
anti-crime strategies.
4. Challenging the culture of violence and
encouraging a culture of life.
All of us must do more to end violence in the home and to find ways
to help victims break out of the pattern of abuse.35 As bishops, we
support measures that control the sale and use of firearms and make
them safer (especially efforts that prevent their unsupervised use by
children or anyone other than the owner), and we reiterate our call
for sensible regulation of handguns.36
Likewise, we cannot ignore the underlying cultural values that help to
create a violent environment: a denial of right and wrong, education
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that ignores fundamental values, an abandonment of personal
responsibility, an excessive and selfish focus on our individual
desires, a diminishing sense of obligation to our children and
neighbors, and a misplaced emphasis on acquiring wealth and
possessions. And, in particular, the media must be challenged to
stop glorifying violence and exploiting sexuality.37 Media images and
information can communicate fear and a distorted perception of
crime. We encourage the media to present a more balanced picture,
which does not minimize the human dignity of the victim or that of the
offender.38 In short, we often fail to value life and cherish human
beings above our desires for possessions, power, and pleasure.39
We join Pope John Paul II in renewing our strong and principled
opposition to the death penalty. We oppose capital punishment not
just for what it does to those guilty of horrible crimes, but for how it
affects society; moreover, we have alternative means today to protect society from violent people. As we said in our Good
Friday Appeal to End the Death Penalty,
Increasing reliance on the death penalty diminishes us and is a sign of growing disrespect for human life. We cannot overcome
crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their
murders. The death penalty offers the tragic illusion that we can defend life by taking life.40
5. Offering victims the opportunity to participate more fully in the criminal justice
process.
Victims and their families must have a more central place in a reformed criminal justice system. Besides the physical wounds
some victims suffer, all victims experience emotional scars that may never fully heal. And since a majority of offenders are not
apprehended for their crimes, these victims do not even have the satisfaction of knowing that the offender has been held
accountable. This lack of closure can increase victims' fears and make healing more difficult.
This vital concern for victims can be misused. Some tactics can fuel hatred, not healing: for example, maximizing punishment for
its own sake and advancing punitive policies that contradict the values we hold. But such abuses should not be allowed to turn
us away from a genuine response to victims and to their legitimate and necessary participation in the criminal justice system.
Victims of crime have the right to be kept informed throughout the criminal justice process. They should be able to share their
pain and the impact of the crime on their lives after conviction has taken place and in appropriate ways during the sentencing
process. If they wish, they should be able to confront the offender and ask for reparation for their losses. In this regard, we offer
general support for legislation to respond to the needs and the rights of victims, and we urge every state to strengthen victims'
advocacy programs.
6. Encouraging innovative programs of restorative justice that provide the opportunity
for mediation between victims and offenders and offer restitution for crimes
committed.
An increasingly widespread and positive development in many communities is often referred to as restorative justice.
Restorative justice focuses first on the victim and the community harmed by the crime, rather than on the dominant state-againstthe-perpetrator model. This shift in focus affirms the hurt and loss of the victim, as well as the harm and fear of the community,
and insists that offenders come to grips with the consequences of their actions. These approaches are not "soft on crime"
because they specifically call the offender to face victims and the communities. This experience offers victims a much greater
sense of peace and accountability. Offenders who are willing to face the human consequences of their actions are more ready
to accept responsibility, make reparations, and rebuild their lives.
Restorative justice also reflects our values and tradition. Our faith calls us to hold people accountable, to forgive, and to heal.
Focusing primarily on the legal infraction without a recognition of the human damage does not advance our values.
One possible component of a restorative justice approach is victim-offender mediation. With the help of a skilled facilitator, these
programs offer victims or their families the opportunity to share the harm done to their lives and property, and provide a place for
the offender to face the victim, admit responsibility, acknowledge harm, and agree to restitution. However, we recognize that
victim-offender mediation programs should be a voluntary element of the criminal justice system. Victims should never be
required to take part in mediation programs. Sometimes their pain and anger are too deep to attempt such a process.
When victims cannot confront offenders—for example, because it may be too painful or the offender has not been apprehended
—they can choose to be part of an "impact panel." Led by professional counselors, these panels bring together victims and
offenders who have been involved in similar crimes and can assist the victim's healing, the community's understanding of the
crime, and the offender's sense of responsibility.
7. Insisting that punishment has a constructive
and rehabilitative purpose.
Our criminal justice system should punish offenders and, when
necessary, imprison them to protect society. Their incarceration,
however, should be about more than punishment. Since nearly all
inmates will return to society, prisons must be places where
offenders are challenged, encouraged, and rewarded for efforts to
change their behaviors and attitudes, and where they learn the skills
needed for employment and life in community. We call upon
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government to redirect the vast amount of public resources away
from building more and more prisons and toward better and more
effective programs aimed at crime prevention, rehabilitation,
education efforts, substance abuse treatment, and programs of
probation, parole, and reintegration.
Renewed emphasis should be placed on parole and probation
systems as alternatives to incarceration, especially for non-violent
offenders. Freeing up prison construction money to bolster these
systems should be a top priority. Abandoning the parole system, as
some states have done, combined with the absence of a clear
commitment to rehabilitation programs within prisons, turns prisons
into warehouses where inmates grow old, without hope, their lives
wasted.
In addition, the current trend towards locating prisons in remote
areas, far away from communities where most crimes are committed,
creates tremendous hardships on families of inmates. This problem
is particularly acute for inmates convicted of federal offenses and for
state prisoners serving their sentences out of state. Families and
children may have to travel long distances, often at significant
expense, to see their loved ones. Distance from home is also a problem for those in the religious community who seek to
provide much-needed pastoral care. Being away from support systems is especially hard on juvenile offenders, who need family
and community support. Public safety is not served by locating prisons in remote communities—regular inmate contact with
family and friends reduces the likelihood that upon release they will return to a life of crime.
Not all offenders are open to treatment, but all deserve to be
challenged and encouraged to turn their lives around. Programs in
jails and prisons that offer offenders education, life skills, religious
expression, and recovery from substance abuse greatly reduce
recidivism, benefit society, and help the offenders when they
reintegrate into the community. These programs need to be made
available at correctional institutions regardless of the level of security
and be offered, to the extent possible, in the language of prisoners.
More effective prevention and treatment programs should also be
available in our communities.
We bishops question whether private, for-profit corporations can
effectively run prisons. The profit motive may lead to reduced efforts
to change behaviors, treat substance abuse, and offer skills
necessary for reintegration into the community. Regardless of who
runs prisons, we oppose the increasing use of isolation units,
especially in the absence of due process, and the monitoring and
professional assessment of the effects of such confinement on the
mental health of inmates.
Finally, we must welcome ex-offenders back into society as full
participating members, to the extent feasible, and support their right
to vote.
8. Encouraging Spiritual Healing and Renewal
for those who commit crime.
Prison officials should encourage inmates to seek spiritual formation
and to participate in worship. Attempts to limit prisoners' expression
of their religious beliefs are not only counterproductive to
rehabilitation efforts, but also unconstitutional. As pastors, we will
continue to press for expanded access to prisoners through our
chaplaincy programs, including by dedicated volunteers. We oppose
limitations on the authentic religious expression of prisoners and
roadblocks that inhibit prison ministry. The denial of and onerous
restrictions on religious presence in prisons are a violation of religious liberty. Every indication is that genuine religious
participation and formation is a road to renewal and rehabilitation for those who have committed crimes. This includes contact
with trained parish volunteers who will help nourish the faith life of inmates and ex-offenders.
9. Making a serious commitment to confront the pervasive role of addiction and mental
illness in crime.
Far too many people are in prison primarily because of addiction. Locking up addicts without proper treatment and then
returning them to the streets perpetuates a cycle of behavior that benefits neither the offender nor society.
Persons suffering from chemical dependency should have access to the treatment that could free them and their families from
the slavery of addiction, and free the rest of us from the crimes they commit to support this addiction. This effort will require
adequate federal, state, and local resources for prevention and treatment for substance abusers. Not providing these resources
now will cost far more in the long run. Substance abusers should not have to be behind bars in order to receive treatment for
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their addictive behavior.
We need to address the underlying problems that in turn attract drug users into an illegal economy—lack of employment,
poverty, inadequate education, family disintegration, lack of purpose and meaning, poor housing, and powerlessness and greed.
The sale and use of drugs--whether to make money or to seek an escape--are unacceptable.
At least one third of inmates are jailed for drug-related crimes. Many of them would likely benefit from alternatives to
incarceration. "Drug courts"—where substance abusers are diverted from the traditional criminal courts and gain access to
serious treatment programs—is one innovation that seems to offer great promise and should be encouraged.
Likewise, crimes are sometimes committed by individuals suffering from serious mental illness. While government has an
obligation to protect the community from those who become aggressive or violent because of mental illness, it also has a
responsibility to see that the offender receives the proper treatment for his or her illness. Far too often mental illness goes
undiagnosed, and many in our prison system would do better in other settings more equipped to handle their particular needs.
10. Treating immigrants justly.
As a country, we must welcome newcomers and see them as adding to the richness of our cultural fabric. We acknowledge that
the law treats immigrants and citizens differently, but no one should be denied the right to fair judicial proceedings. We urge the
federal government to restore basic due process to immigrants (including a repeal of mandatory detention) and allow those
seeking asylum a fair hearing. Migrants who cannot be deported because their country of origin will not accept them should not
be imprisoned indefinitely. Legal immigrants who have served sentences for their crimes should not be re-penalized and
deported, often leaving family members behind. Many of these immigrants have become valuable members of their
communities. Likewise, we oppose onerous restrictions on religious expression and pastoral care of detained immigrants and
asylum seekers under Immigration Naturalization Service (INS) jurisdiction and urge the INS to guarantee access to qualified
ministerial personnel.
11. Placing crime in a community context and building on promising alternatives that
empower neighborhoods and towns to restore a sense of security.
"Community" is not only a place to live; the word also describes the web of relationships and resources that brings us together
and helps us cope with our everyday challenges. Fear of crime and violence tears at this web. Some residents of troubled
neighborhoods are faced with another kind of community, that of street gangs. These residents feel powerless to take on tough
kids in gangs and have little hope that the situation will ever improve.
But there are communities where committed individuals are willing to take risks and bring people together to confront gangs and
violence. Often organized by churches—and funded by our Catholic Campaign for Human Development—these community
groups partner with local police to identify drug markets, develop specific strategies to deal with current and potential crime
problems, and target at-risk youth for early intervention. Bringing together many elements of the community, they can devise
strategies to clean up streets and take back their neighborhoods.
One successful community strategy is Boston's Ten Point Coalition, which is credited with reducing juvenile gun deaths, over a
several-year period, from epidemic proportions to near zero. This strategy requires a close relationship among religious leaders
and law enforcement and court officials, as well as a pervasive presence of people of faith on the streets offering outreach,
opportunities for education, and supervised recreation to at-risk youth. The strategy also sends a clear signal that criminal
activity in the community will not be tolerated. Similar strategies that model the Boston coalition are now emerging in other cities.
Another community-based strategy to prevent crime is the "broken-window" model. Proponents contend that tolerance of lesser
crimes (such as breaking windows of cars and factories) undermines public order and leads to more serious crimes. Stopping
crime at the broken-windows stage demonstrates that a low-cost, high-visibility effort can be effective in preventing crime.
Community policing and neighborhood-watch groups have proven to be effective models of crime control and community
building, empowering local leaders to solve their own problems. These efforts reflect the Catholic social teaching principles of
solidarity, subsidiarity, and the search for the common good.
The Church's Mission
The challenge of curbing crime and reshaping the criminal justice system is not just a matter of public policy, but is also a test of Catholic
commitment. In the face of so much violence and crime, our faith calls the Church to responsibility and action. A wide variety of Catholic
communities have responded with impressive programs of service and advocacy. In many dioceses, Catholic Charities is reaching out to
victims, those in prison and their families, ex-offenders, and others touched by crime and the criminal justice system through counseling,
employment and treatment programs, as well as early intervention efforts directed towards families and individuals at risk. Yet more is
needed. Our community of faith is called to
1. Teach right from wrong, respect for life and the law, forgiveness and mercy.
Our beliefs about the sanctity of human life and dignity must be at the center of our approach to these issues. We respect the
humanity and promote the human dignity of both victims and offenders. We believe society must protect its citizens from
violence and crime and hold accountable those who break the law. These same principles lead us to advocate for rehabilitation
and treatment for offenders, for, like victims, their lives reflect that same dignity. Both victims and perpetrators of crime are
children of God.
Even with new visions, ideas, and strategies, we bishops have modest expectations about how well they will work without a
moral revolution in our society. Policies and programs, while necessary, cannot substitute for a renewed emphasis on the
traditional values of family and community, respect and responsibility, mercy and justice, and teaching right from wrong. God's
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wisdom, love, and commandments can show us the way to live together, respect ourselves and others, heal victims and
offenders, and renew communities. "Thou shalt not kill" and "Thou shalt not steal" are still necessary guidelines for a civil society
and imperatives for the common good. Our Church teaches these values every day in pulpits and parishes, in schools and adult
education programs, and through advocacy and witness in the public square. Catholic institutions that offer programs for youth
and young adult ministry—including Catholic schools, Catholic Charities, and St. Vincent De Paul agencies—are bulwarks
against crime, by providing formation for young people, enrichment and training for parents, counseling and alternatives for
troubled children and families, and rehabilitative services for former inmates.
2. Stand with victims and their families.
Victims of crime and their families often turn to their local parishes for compassion and support. Pastors and parish ministers
must be prepared to respond quickly and effectively. In the past, failure to do so has resulted in alienation from the Church by
crime victims and/or members of the families of crime victims. Our pastoral presence to victims must be compassionate and
constant, which includes developing victim ministry programs. Such programs will teach ministers to acknowledge the emotional
strain felt by victims, to understand that the search for wholeness can take a very long time, and to encourage victims to redirect
their anger from vengeance to true justice and real healing.
3. Reach out to offenders and their families, advocate for more treatment, and provide
for the pastoral needs of all involved.
The families of offenders are also in need of our pastoral presence. Seeing a loved one fail to live up to family ideals, community
values, and the requirements of the law causes intense pain and loss. The Gospel calls us as people of faith to minister to the
families of those imprisoned and especially to the children who lose a parent to incarceration.
We know that faith has a transforming effect on all our lives. Therefore, rehabilitation and restoration must include the spiritual
dimension of healing and hope. The Church must stand-ready to help offenders discover the good news of the Gospel and how
it can transform their lives. There should be no prisons, jails, or detention centers that do not have a regular and ongoing
Catholic ministry and presence. We must ensure that the incarcerated have access to these sacraments. We especially need to
commit more of our church resources to support and prepare chaplains, volunteers, and others who try to make the system
more just and humane. We are grateful for those who bring the Gospel alive in their ministry to those touched by crime and to
those in prison. The Church must also stand ready to help the families of inmates, especially the young children left behind.
One way to help reintegrate offenders into the community is developing parish mentoring programs that begin to help offenders
prior to their release and assist them in the difficult transition back to the community. These programs can reduce recidivism and
challenge faith communities to live out the Gospel values of forgiveness, reconciliation, and responsibility for all members of the
Body of Christ. Mentoring programs provide an environment of support, love, and concrete assistance for ex-offenders while
also educating parishioners about Catholic teaching and restorative justice.
Family group counseling programs have been especially effective in redirecting youth who find themselves alienated from their
families. Skilled counselors can help families identify their negative patterns in relating to one another and can offer alternate
ways of communicating and building stronger families.
4. Build community.
Every parish exists within a community. When crime occurs, the whole community feels less safe and secure. Parishes are
called to help rebuild their communities. Partnerships among churches, law enforcement, businesses, and neighborhood-watch
groups, as well as social service, substance abuse, and mental health agencies, can help address crime in the neighborhood.
The parish community can also be instrumental in developing programs for prison and victim ministries. The Catholic Campaign
for Human Development supports many creative efforts to prevent crime and rebuild community.
5. Advocate policies that help reduce violence, protect the innocent, involve the
victims, and offer real alternatives to crime.
As people of faith and as citizens, we are called to become involved in civil society and to advocate for policies that reflect our
values. Current approaches to crime, victims, and violence often fall short of the values of our faith. We should resist policies
that simply call for more prisons, harsher sentences, and increased reliance on the death penalty. Rather, we should promote
policies that put more resources into restoration, education, and substance-abuse treatment programs. We must advocate on
behalf of those most vulnerable to crime (the young and the elderly), ensure community safety, and attack the leading
contributors to crime, which include the breakdown of family life, poverty, the proliferation of handguns, drug and alcohol
addiction, and the pervasive culture of violence. We should also encourage programs of restorative justice that focus on
community healing and personal accountability.
6. Organize diocesan and state consultations.
In this statement, we have tried to reflect what was learned through our consultations with those involved in the criminal justice
system. More difficult to express were their many eloquent personal experiences of pain and joy, of hope and disappointment, of
success and failure. Their experiences and challenges have moved us deeply and have helped us focus on the human
dimensions of this enormously complex set of problems. Some of their stories have been included as a part of these reflections.
We encourage diocesan leaders to convene similar processes of engagement and dialogue with those involved in the system:
crime victims, former inmates, jail chaplains, judges, police officers, community leaders, prosecutors, families of victims and
offenders, and others. Ask them to share their faith, stories, and hopes and fears. Listening can lead to action. This kind of
dialogue can encourage parishes to minister to victims and to inmates, to mentor troubled youth, and to help former prisoners
rejoin society.
At the state level, we urge similar convenings held under the auspices of state Catholic conferences. These key Catholic public
policy organizations can share their message with influential lawmakers and help shape new policies.
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7. Work for new approaches.
No statement can substitute for the values and voices of Catholics working for reform. We hope these reflections will encourage
those who are already working for reform both inside and outside the system. We also hope many others will join with them in
efforts to prevent crime, reach out to victims, offer ministry and rehabilitation in our prisons, help to re-integrate ex-offenders,
and advocate for new approaches.
Our national bishops' conference will seek to share the message of this statement. Through our Catholic Campaign for Human
Development and other programs, we will offer ideas and options, directions and resources, for those willing to take up this
challenge.
Conclusion
We Catholic bishops hope that these modest reflections will stimulate a renewed dialogue among Catholics and other people of good will
on issues and actions regarding crime and criminal justice. We encourage and support those called by our community to minister to
prisoners and victims and all other people who work directly in the criminal justice system. We suggest that they use these reflections to
assess how the system can become less retributive and more restorative. We pray that these words offer some comfort to victims and
communities threatened by crime, and challenge all Catholics to become involved in restoring communities to wholeness.
We are guided by the paradoxical Catholic teaching on crime and punishment: We will not tolerate the crime and violence that threatens
the lives and dignity of our sisters and brothers, and we will not give up on those who have lost their way. We seek both justice and
mercy. Working together, we believe our faith calls us to protect public safety, promote the common good, and restore community. We
believe a Catholic ethic of responsibility, rehabilitation, and restoration can become the foundation for the necessary reform of our broken
criminal justice system.
Renewing Our Call to End the Death Penalty
In these reflections, we bishops have focused on how our faith and teaching can offer a distinctive Catholic perspective
on crime and punishment, responsibility and rehabilitation. These reflections do not focus on the death penalty as our
primary concern. In this context, however, we wish to renew our call for an end to capital punishment.
The administration of the death penalty is often seen as a major sign of some of the failings within the American
criminal justice system. Capital punishment is cruel, unnecessary, and arbitrary; it often has racial overtones;1 and it
fails to live up to our deep conviction that all human life is sacred: "Our witness to respect for life shines most brightly
when we demand respect for each and every human life, including the lives of those who fail to show that respect for
others. The antidote to violence is love, not more violence."2
In this call we add our voices to the prophetic witness of Pope John Paul II—who, when he last came to our nation,
appealed for an end to capital punishment:
The new evangelization calls for followers of Christ who are unconditionally pro-life: who will proclaim, celebrate and
serve the Gospel of life in every situation. A sign of hope is the increasing recognition that the dignity of human life must
never be taken away, even in the case of someone who has done great evil. Modern society has the means of
protecting itself, without definitively denying criminals the chance to reform (cf. Evangelium Vitae, no. 27). I renew
the appeal I made most recently at Christmas for a consensus to end the death penalty, which is both cruel and
unnecessary.
We join our appeal to the position of the universal Church. The promulgated text of the Catechism of the Catholic
Church declares,
If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit
itself to such means, as these are more in conformity with the dignity of the human person. (no. 2267)
And we join with those who are working to end the death penalty—in their witness at prisons as people are executed, in
state capitals across our land, in courtrooms and prisons around the nation, and in Congress, where efforts to abolish
or limit the death penalty are being debated. We support calls for a moratorium on executions and welcome the
courage of leaders who have implemented or are working to address the clear failings of the death penalty.
We know this is not an easy matter. Catholic teaching has developed over time and there have been diverse views on
the application of these principles. However, as we begin this new millennium, Pope John Paul II, the U.S. Catholic
bishops, and the Catechism of the Catholic Church3 together express the strong conviction that capital
punishment should no longer be used since there are better ways to protect society, and the death penalty diminishes
respect for human life.
We are encouraged by small but growing signs that support for the death penalty is eroding and that capital punishment
is being reconsidered. People are asking if we are really safer in states where executions are so regular that they hardly
rate news coverage. People are asking whether we can be sure that those who are executed are truly guilty, given the
evidence of wrongful convictions and poor representation in death penalty cases. We welcome legislation to address
these issues as a way to focus on the unfairness of the death penalty. But most of all, we are asking whether we can
teach that killing is wrong by killing those who have been convicted of killing others. It is time to abandon the death
penalty—not just because of what it does to those who are executed, but because of how it diminishes all of us.
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We cannot overcome what Pope John Paul II called a "culture of death," we cannot reverse what we have called a
"culture of violence," and we cannot build a "culture of life" by state-sanctioned killing. As we said before and renew
today:
We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the
lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking
life.4
We ask all Catholics—pastors, catechists, educators, and parishioners—to join us in rethinking this difficult issue and
committing ourselves to pursuing justice without vengeance. With our Holy Father, we seek to build a society so
committed to human life that it will not sanction the killing of any human person.
Notes
1. Though holding only one-half of 1 percent of death row inmates, the federal government recently concluded a
study of its nineteen people on death row. The conclusion is that despite serious efforts to ensure fairness in
seeking the death penalty for defendants convicted of federally eligible crimes, fourteen of the inmates are
African American, five are Caucasian, and one is Hispanic (U.S. Department of Justice, Survey of the
Federal Death Penalty System: 1988-2000 [Washington, D.C., 2000]).
2. U.S. Catholic Bishops, Living the Gospel of Life: A Challenge to American Catholics
(Washington, D.C., 1998), 15.
3. For the complete text on the treatment of the death penalty, see Catechism of the Catholic Church,
2nd. ed. (Washington, D.C.: United States Conference of Catholic Bishops, 2000), nos. 2263-2267, see also,
no. 32.
4. Administrative Board, United States Conference of Catholic Bishops, A Good Friday Appeal to End the
Death Penalty (Washington, D.C.: United States Conference of Catholic Bishops, 1999), 3.
Appendix
Suggestions for Action
The Catholic community has a tremendous history and capacity to help shape the issues of crime and criminal justice in the United
States. Few organizations do more to prevent crime or heal its effects than the Catholic Church. Through many committed individual
Catholics, prison ministry programs, parish outreach efforts, Catholic schools, diocesan peace and justice offices, community organizing
projects, ex-offender reintegration programs, family counseling, drug and alcohol recovery programs, and charitable services to lowincome people, the Catholic community responds to criminal justice concerns in a wide variety of ways. But we can do more.
This list of suggestions and resources is by no means exhaustive. Rather, it is intended to give individual Catholics, parishes, and
dioceses some directions about programs and policies that reflect Catholic principles and values as we work together to implement this
statement.
Teach Right from Wrong, Respect for Life, Forgiveness and Mercy
Parish priests, Catholic educators, and a wide variety of other efforts assist parents in teaching children right from wrong, respect for life,
and forgiveness and mercy. Catholics also can have an impact in their own families and communities, when they teach by example and
demonstrate these values by their actions.
Respect for human life—the cornerstone of Catholic social teaching—is a key to our work in criminal justice because we believe that the
current culture of violence contributes to crime. We bishops urge Catholics to work against the violence of abortion, euthanasia, and
assisted suicide. We call for renewed efforts to abolish the death penalty. In addition, Catholics must work to ensure that everyone has
access to those things that enhance life and dignity: decent housing, a job with a living wage, and health care. Catholics can
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Promote a culture of life, alternatives to abortion by supporting adoption, foster care, and homes for unwed mothers
Read the U.S. Catholic Bishops statement, Renewing the Mind of the Media: A Statement on Overcoming
Exploitation of Sex and Violence in Communications, which offers ways for Catholics to help curtail the use of violent
and sexual content on radio and television and in print media and movies.
Support local programs that offer young people character-building opportunities and divert their energy to positive endeavors:
athletics, Scouting, Church-sponsored after-school and evening social programs, and tutoring and literacy programs.
Encourage schools, churches, and neighborhood centers to teach conflict resolution, especially to children, as a way to reduce
tension and violence.
Work to ensure that jobs, affordable housing, and accessibility to health services are available in your community.
Oppose attempts to impose or expand the death penalty in your state. In states that sanction the death penalty, join
organizations that work to curtail its use (e.g., prohibit the execution of teenagers or the mentally ill) and those that call for its
abolition.
Invite parish discussions for collaborative responses to the death penalty—such as public prayer vigils, tolling of church bells,
penitential practices—when an execution is scheduled.
Stand With Victims and Their Families
The Church's witness to victims and their families must be more focused and comprehensive. We must see victims as people with many
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needs, not just those satisfied by the criminal justice system. The government's role is to ensure that the offender is punished, that
reparations are made and that the community feels safe, but victims have spiritual, physical and emotional needs that are often best met
by family, friends, neighbors and the community of faith. The Church should pursue policies and programs that respond to all the needs
of victims of crime, just as we do to victims of natural disasters. To support victims, Catholics can
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Learn more about the types of programs that are available for victims at the local level. For example, many states offer
reparations for victims of violence, and some local churches have developed effective victim ministry programs. Catholic
parishes can work to discover the gaps in meeting victims' needs and explore ways to fill those gaps.
Support local programs that work to train people for victim ministry. Where these programs don't exist, join with other churches,
civic, and community groups to form networks of people ready to respond to the material, emotional, and spiritual needs of
victims.
Promote victim ministry programs at the parish level with the goal of having a consistent and comprehensive presence to those
affected by crime. Parishioners can bring meals, secure broken windows and doors, and offer emotional support to victims of
break-ins or violent encounters. Pastoral ministers should become familiar with services available through Catholic Charities and
other counseling agencies and victims' programs and help connect victims with these services.
Reach Out to Offenders and Their Families
Just as victims of crime have a variety of needs, so do offenders and their families, especially the children of offenders. The Church
should not only have a strong presence in prisons and jails—where we Catholics work to meet the spiritual and emotional needs of
inmates—but should make special efforts to assist children left without the support of their incarcerated parent. Catholics can
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Promote prison ministry programs at the diocesan and parish levels. We affirm the dedicated deacons and priests who carry
forward this mission. We welcome lay ministers—both volunteer and professional—who are indispensable to this ministry.
Reach out to the families of inmates. Parishes can mentor families caught up in the cycle of crime, assist with transportation for
prison visitations, offer material assistance when income is lost because of the incarceration, and provide counseling (often
through Catholic Charities agencies).
Promote prisoner re-entry programs. Often the most difficult time for a former inmate is trying to reintegrate into his or her
community. Some parishes have made available church property for transition houses while others assist in providing the
spiritual, material, and emotional assistance that the probation and parole system rarely provides.
Build Community
Catholics believe that life in community enables all people to be fully human. We value strong, intact families and healthy neighborhoods.
Crime, especially violent crime, often destroys families and communities and can make everyone feel less safe or secure. Catholics are
encouraged to promote all of those things that support family life and lift up the community. Catholics can
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Promote the variety of efforts in our neighborhoods that encourage active participation in the life of the community.
Neighborhood watch groups, community-oriented policing, and partnerships between law enforcement and the local faith
community are all part of the web of relationships that create safe and secure communities.
Promote the work of the Catholic Campaign for Human Development in your local diocese by giving generously to the annual
collection. Grants from the collection are given back to communities to support organizing projects which bring people together
to work on community needs, including crime and criminal justice.
Support programs in your community that engage youth and build their self-esteem. Become a Big Brother or Big Sister, mentor
children at risk, and support school or community center programs that offer diversions for children between the hours of 3:00
and 8:00 p.m. when parental supervision is often inadequate.
Discover new ways of dealing with offenders. Models such as Boston's "Ten-Point Coalition" can be replicated in many
communities. These programs encourage partnerships between local churches and police and divert troubled teens from a life
of crime to becoming productive citizens.
Advocate Policies That Offer Real Alternatives to Crime
Charitable works go a long way toward solving some of the problems of crime and victimization. Yet efforts to change policies and
enhance programs that affect the treatment of victims and offenders, and those that help restore communities affected by crime are also
essential to a new approach to crime and criminal justice. We Catholics must bring our beliefs and values to the attention of those in
positions to influence policy.
State Catholic conferences, diocesan offices (e.g., pro-life, education, and social concerns), and parish legislative advocacy networks can
help individual Catholics to support public policies that reflect our values. Catholics can
●
●
●
Learn about federal, state, and local policies that affect how criminal justice is administered.
Join diocesan legislative networks to ensure that the Catholic voice is heard on crime and criminal justice issues. If your diocese
does not have a legislative network, call your state Catholic conference or visit the website for the U.S. bishops' Office of
Domestic Policy at www.usccb.org/sdwp for actions you can take at the national level.
Talk to prosecutors, judges, chiefs of police, and others involved in the criminal justice system and seek their views on how the
system can better reflect our values and priorities.
Organize Diocesan Consultations
A primary role for the Church is to gather people of different viewpoints and help them to reach common ground. Out of this dialogue can
come greater appreciation for diverse perspectives, credibility for the Church's involvement in the issues, and ultimately a change of heart
and mind by those who can impact the criminal justice system so that it more fully reflects gospel values.
Page 60 of 65
●
●
We bishops encourage dioceses to invite jail and prison chaplains, victims of crime, corrections officers, judges, wardens,
former inmates, police, parole and probation officers, substance abuse and family counselors, community leaders and others to
listening sessions. The purpose of these sessions would be to gain a better appreciation of all the parties affected by crime and
involved in the criminal justice system, to seek common ground on local approaches to crime, to collaborate more easily in
areas of mutual concern, and to build community among all these people of goodwill who are trying to make society safer and
life more complete.
State Catholic conferences may convene policy makers, ministers, and other interested parties at the state level and engage in
a similar process of listening, learning, and planning in an effort to make the criminal justice system more reflective of justice and
mercy, responsibility and rehabilitation, restoration and wholeness.
Notes
1. From an interview with the Chief of Chaplains, Federal Bureau of Prisons, Chaplaincy Office (1999).
2. Federal Bureau of Investigation, Uniform Crime Reporting 1999 Preliminary Annual Report (Washington, D.C., May
1999).
3. U.S. Department of Justice, Bureau of Justice Statistics, Crime Victimization 1998, BJS Publication no. 176353
(Washington, D.C.).
4. U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the U.S. by Age, Gender and Race
(Washington, D.C., 1997).
5. U.S. Department of Justice, Bureau of Justice Statistics, Incarcerated Parents and Their Children, BJS Publication no.
182335 (Washington, D.C., 2000).
6. Among the concerns of victims are their desires to be notified of and heard at detention hearings, to seek restitution, and to be
notified of escape, among others.
7. The Association of Certified Fraud Examiners, Report to the Nation on Occupational Fraud and Abuse <http://www.
cfenet.com/newsandfacts/fraudfacts/reporttothenation/index.shtml> (2000).
8. Andre Kuhn, "Prison Populations in Western Europe," in Overcrowded Times—A Comparative Perspective, ed.
Michael Tonry and K. Hatlestad (New York: Oxford University Press, 1997).
9. Kuhn, "Sanctions and their Severity," in Crime and Criminal Justice Systems in Europe and North America 19001994, ed. K. Kangasunta, M. Joutsen, and N. Ollus (Helsinki, Finland: European Institute for Crime Prevention and Control
[HEUNI], 1998).
10. Amnesty International, United States of America: Rights for All (London, 1998), 73.
11. For example, according to The California Budget Project, California state expenditures on corrections grew sixfold
between 1980 and 1999, while expenditures for education increased only 218 percent over the same period. California now
ranks forty-first among the states in education dollars per pupil ("Dollars and Democracy: An Advocate's Guide to the California
State Budget Process" [Sacramento, Calif., March 1999]).
12. The bishops of Appalachia recognized this trend in the statement At Home in the Web of Life, noting that in their region
"unemployed people [are] available as cheap labor to guard the countless imprisoned people, themselves cast off. . . ."
13. U.S. Department of Justice, Bureau of Justice Statistics, Prison and Jail Inmates, 1999, NCJ no. 183476 (Washington, D.
C., 2000).
14. U.S. Department of Justice, Bureau of Justice Statistics, Correctional Populations in the United States (Washington, D.
C., 1998).
15. U.S. Department of Justice, Bureau of Justice Statistics, Prison and Jail Inmates, 1999, NCJ no. 183476 (Washington, D.
C., 2000).
16. Cf. Ronald H. Weich and Carlos T. Angulo, Justice on Trial: Racial Disparities in the American Criminal Justice
System, Leadership Conference on Civil Rights and Leadership Conference Education Fund (April 2000); and The National
Council on Crime and Delinquency, And Justice for Some (April 2000).
17. U.S. Department of Justice, Bureau of Justice Statistics, Substance Abuse and Treatment, State and Federal
Prisoners, 1997 (Washington, D.C., 1999).
18. U.S. Department of Justice, Bureau of Justice Statistics, Mental Health and Treatment of Inmates and Probationers
(Washington, D.C., 1999).
19. This figure is derived by comparing corrections figures published by the U.S. Department of Justice for 1980 and 1999.
20. These laws are included in the Illegal Immigration Reform and Immigration Responsibility Act of 1996.
21. F. Cullen and P. Gendreau, "The Effectiveness of Correctional Rehabilitation: Reconsidering the ‘Nothing Works' Debate," in
American Prisons: Issues in Research and Policy, ed. L. Goodstein and D. MacKenzie (New York: Plenum, 1989),
pp. 23-44; and Robert Martinson, "What Works?—Questions and Answers about Prison Reform," The Public Interest
(Spring 1974): 22-54.
22. National Institute of Justice, 1998 Annual Report on Drug Use Among Adult and Juvenile Arrestees (Washington,
D.C., 1999).
23. The four recent national studies that included thousands of subjects are (1) the Treatment Outcomes Prospective Study (TOPS),
(2) the Drug Abuse Treatment Outcome Study (DATOS), (3) the Services Research Outcomes Study (SROS), and (4) the
National Treatment Improvement Evaluation Study (NTIES). Each of the studies found strong evidence of effectiveness. For
example, TOPS found that drug treatment resulted in a 60 percent reduction in weekly heroin use and a 27 percent reduction in
predatory crime one year after treatment (R. L. Hubbard, et al., Drug Abuse Treatment: A National Study of
Effectiveness [Chapel Hill, N.C., 1989], no. 2140). DATOS found a 69 percent reduction in the number of weekly heroin users
twelve months after treatment and found that the probability of being in jail for a person in outpatient drug programs dropped
from 69 percent in the year before treatment to 25 percent in the year after treatment (Hubbard, et al., an overview of the oneyear follow-up in the "Drug Abuse Treatment Outcome Study" in Psychology of Addictive Behaviors [1997], no. 2139).
SROS found a 21 percent overall reduction in the use of any illicit drug following treatment (Office of Applied Studies, Services
Research Outcome Study [Department of Health and Human Services, Substance Abuse and Mental Health Services
Administration, 1998], no. 2144). NTIES found that 50 percent of clients used crack in the year before treatment compared to 25
Page 61 of 65
24.
25.
26.
27.
28.
29.
30.
31.
32.
percent during the year after treatment and pinpointed the following decreases in criminal activity: 78 percent decrease in selling
drugs, 82 percent in shoplifting, and 78 percent in beating someone up (D. R. Gerstein, et al., The National Treatment
Evaluation Study: Final Report [Department of Health and Human Services, Substance Abuse and Mental Health
Services Administration, 1997], no. 2138).
One study found that the societal costs associated with crime and lost productivity were reduced by $7.46 as a result of every
dollar spent on treatment. In contrast, these costs were reduced by $0.15 for every dollar spent on crop eradication programs in
other countries, by $0.32 for every dollar spent on interdiction through cocaine and drug-related assets seizures, and by $0.52
for every dollar spent on domestic law enforcement and incarceration (C. P. Rydell and S. S. Everingham, Controlling
Cocaine: Supply Versus Demand Programs [Santa Monica, Calif.: RAND Corporation, 1994], no. 2134).
RAND Corporation (1998), no. 2135.
Don Andrews, Craig Dowden, and Paul Gendreau, "Psychologically Informed Treatment: Clinically Relevant and Psychologically
Informed Approaches to Reduced Re-Offending: A Meta-Analytic Study of Human Service, Risk, Need, Responsivity and Other
Concerns in Justice Contexts" (1999).
Byron R. Johnson, David B. Larson, Timothy G. Pitts, "Religious programs, institutional adjustment, and recidivism among
former inmates in prison fellowship programs," Justice Quarterly 14:1 (March 1997).
Thomas O'Connor and Crystal Parikh, "Best Practices for Ethics and Religion in Community Corrections," The ICCA Journal
on Community Corrections 8:4 (1998): 26-32; and A. Skotnicki, "Religion and the Development of the American Penal
System," doctoral dissertation (Graduate Theological Union, 1992). In these articles, the authors highlight the traditions of the
Puritans and the Quakers and their contributions to our modern penal system.
John Paul II, Message of His Holiness John Paul II for the Jubilee in Prisons (Vatican City, June 24, 2000).
Cf. the thoughts of Pope John Paul II, The Gospel of Life (Evangelium Vitae), no. 56: "The problem [of the death
penalty] must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end,
with God's plan for man and society."
Wisconsin's Roman Catholic Bishops, Public Safety, the Common Good, and the Church: A Statement on
Crime and Punishment in Wisconsin (September 1999). The complete text of this statement is published in Origins
29:17 (October 7, 1999): 261-266.
Catechism of the Catholic Church, 2nd edition (Washington, D.C.: United States Conference of Catholic Bishops, 2000).
Here are relevant passages:
Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the
common good requires that an unjust aggressor be rendered unable to cause harm. (no. 2265)
The efforts of the state to curb the spread of behavior harmful to people's rights and to the basic rules of civil society correspond
to the requirement of safeguarding the common good. Legitimate public authority has the right and the duty to inflict
punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder
introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation.
Punishment then, in addition to defending public order and protecting people's safety, has a medicinal
purpose: as far as possible, it must contribute to the correction of the guilty party. (no. 2266; emphasis added)
Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church
does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against an
unjust aggressor.
If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to
such means, as these are more in conformity with the dignity of the human person.
Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who
has committed an offense incapable of doing harm—without definitively taking away from him the possibility of redeeming
himself—the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically
nonexistent." (no. 2267)
33. John Paul II, Sollicitudo Rei Socialis (Washington, D.C.: United States Conference of Catholic Bishops, 1987), no. 38.
34. U.S. Department of Justice, Bureau of Justice Statistics, Alcohol and Crime: An Analysis of National Data on the
Prevalence of Alcohol Involvement in Crime (Washington, D.C., 1998).
35. Cf. Committee on Marriage and Family and the Committee on Women in Society and in the Church, United States Conference
of Catholic Bishops, When I Call for Help: A Pastoral Response to Domestic Violence Against Women
(Washington, D.C.: United States Conference of Catholic Bishops, 1992).
36. However, we believe that in the long run and with few exceptions (i.e., police officers, military use), handguns should be
eliminated from our society. "Furthermore, the widespread use of handguns and automatic weapons in connection with drug
commerce reinforces our repeated ‘call for effective and courageous action to control handguns, leading to their eventual
elimination from our society.'" U.S. Catholic Bishops, New Slavery, New Freedom: A Pastoral Message on
Substance Abuse (Washington, D.C.: United States Conference of Catholic Bishops, 1990), 10.
37. Cf. U.S. Catholic Bishops, Renewing the Mind of the Media: A Statement on Overcoming Exploitation of Sex
and Violence in Communication (Washington, D.C.: United States Conference of Catholic Bishops, 1998).
38. A recent study of issues covered on the evening news by selected major television stations found that murder stories rose over
300 percent, from 80 in 1990 to 375 in 1995, while actual murder rates in that period declined 13 percent. See Marc Mauer,
Race to Incarcerate (New York: New Press, 1999), 172.
39. U.S. Catholic Bishops, Confronting a Culture of Violence: A Catholic Framework for Action (Washington, D.C.:
United States Conference of Catholic Bishops, 1994).
40. Administrative Board, United States Conference of Catholic Bishops, A Good Friday Appeal to End the Death Penalty
(Washington, D.C.: United States Conference of Catholic Bishops, 1999), 3.
Page 62 of 65
The text for Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice
originated from the Committee on Domestic Policy of the United States Conference of Catholic Bishops. It was approved for publication
by the full body of bishops at their November 2000 General Meeting and has been authorized for publication by the undersigned.
Msgr. Dennis M. Schnurr, General Secretary, NCCB/USCC
Stories from people involved in the criminal justice system are used with permission.
Scripture texts used in this work are taken from the New American Bible, copyright © 1991, 1986, and 1970 by the Confraternity of
Christian Doctrine, Washington, D.C. 20017 and are used by permission of the copyright owner. All rights reserved.
Copyright © 2000, United States Conference of Catholic Bishops, Inc., Washington, D.C. All rights reserved. No part of this work may be
reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any
information storage and retrieval system, without permission in writing from the copyright holder.
Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice is available in
a print edition and may be ordered by telephoning (800) 235-8722. Ask for publication number 5-394 for the English edition or 5-846 for
the Spanish edition; the cost is $5.95 for a single copy, plus shipping and handling.
Email us at [email protected]
Justice, Peace and Human Development | 3211 4th Street, N.E., Washington DC 20017-1194 | (202) 541-3180 © USCCB. All rights reserved.
Page 63 of 65
The U.S. Conference of Mayors
76th Annual Meeting
June 20-24, 2008
Miami
2008 ADOPTED RESOLUTIONS
CALLING FOR REAUTHORIZATION OF THE JUVENILE JUSTICE AND
DELINQUENCY PREVENTION ACT
WHEREAS, The Juvenile Justice and Delinquency Prevention Act(JJDPA) of 1974 [42 U.S.C. 5601]
provides the major source of federal funding to improve states' juvenile justice systems. The JJDPA was
cultivated upon the tested notion that children should not have contact with adults in jails and other
institutional settings, and that status offenders should not be placed insecure detention; and
WHEREAS, the current authorization, as amended, of the JJDPA is set to expire in 2009; and
WHEREAS, according to the Department of Justice Office of Juvenile Justice and Delinquency Prevention,
violent crime among youth increased four percent from 2005 to 2006; and
WHEREAS, according to the Department of Justice, youth violent crime accounts for 17 percent of the
total violent crime in America; and
WHEREAS, a recent study published by the U.S. Centers for Disease Control and Prevention (CDC) finds
that transferring youth to the adult criminal justice system significantly increases crime; and
WHEREAS, in 1998, the Conference of Mayors passed a resolution requesting that Congress implement
better funding methods through the States for addressing youth violence and juvenile justice issues; and
WHEREAS, in 2005, the Conference of Mayors encouraged its members to create programs to prevent
and reduce violence by implementing parent education initiatives, family support programs, business
programs, and faith-based organization enterprises; and
WHEREAS, also in 2007, the Conference of Mayors reiterated it’s call for better regulation of the sealing,
expunging and releasing of juvenile records, particularly those associated with nonviolent crimes, so that
young people affected have the maximum opportunity to become self-sufficient and successful adults;
and
WHEREAS, the Juvenile Justice Delinquency Prevention Act is an essential tool toward not only helping
our nation’s youth but also preventing crime,
NOW, THEREFORE, BE IT RESOLVED that the Conference of Mayors calls upon the U.S. Congress to
reauthorize the Juvenile Justice and Delinquency Prevention Act with specific increased spending flexibility
and amounts for the 1) Juvenile Accountability Block Grant Program, 2) Title II Grants, and 3) New
Page 64 of 65
Initiatives and Programs Grant; and
BE IT FURTHER RESOLVED that the Conference of Mayors calls on other mayors and Congress to
support youth programs with intervention targets for at-risk youth ages 14 to 25 through outreach and
service connection and also attempts to link the community as a whole through a media campaign and
community mobilization efforts; and
BE IT FURTHER RESOLVED that a reauthorization shall include at least programs supporting job
training, education, employment, housing, substance abuse treatment, mental health services and
recreation to help our youth realize their true potential.
Page 65 of 65

preventing the sexual abuse of youth in correctional settings

Transcription

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