America’s Juvenile Justice System Is Broken

Everyone wants to help. A teacher or parent picks up the phone and calls the police because they believe it’s a way to help a kid or teenager with problems. The police make referrals to prosecutors and juvenile courts because they believe the same thing. Lawyers and judges send youth to detention centers because they think incarceration is where mental health resources are available.

Everyone just wants to help.

The tragedy is that the juvenile justice system can leave kids and teenagers worse off than when they entered it. Over the past six years, nearly 1,300 people have sued New Hampshire alleging that they were sexually and physically abused while in juvenile detention. According to New Hampshire Public Radio, this is “the largest government scandal in New Hampshire, and one of the largest youth detention abuse cases in American history.” On the opposite end of the country, California charged 30 juvenile corrections officers at a single facility last year for arranging “gladiator fights” among the youth they were tasked with helping. The indictment recounted 70 bouts over the course of just five months, with some of the 140 victims as young as 12. In spite of the ideals professed by lawmakers, officials, and the public, the juvenile justice system often hurts young people instead of helping them.

A decade ago, the juvenile justice system was new to me. I was a rookie public defender assigned a juvenile court caseload in a small county in north Georgia. Over the four years that followed, I kept that responsibility even as my adult court assignments shifted me to another community. I went to child custody hearings and got to know hundreds of kids in trouble with the law. I made regular trips to the Regional Youth Detention Center, where young people are held on a short-term basis. I also talked to a lot of lawyers whose life’s work is in juvenile courts.

Though I’m not on the front lines anymore, on June 12, I testified before the U.S. Commission on Civil Rights about mental health in juvenile justice facilities. I told the commissioners about the conflicting mindsets that beset the law—on the one hand, a belief that people who commit crimes are problems, and on the other, confidence that youth merely have correctable problems. I spoke about the reasons I doubt the system will ever truly live up to its promise. And I noted ways to try to prevent and repair the harm the system will cause.

Just days before, I drove by the Youth Development Campus, a facility in my home city of Augusta, Georgia, where kids and teenagers are incarcerated long-term. I couldn’t help but think of both the promise of the system and its perils. The promise is that detainees there can receive a diploma from an accredited high school. Foremost among the perils is dehumanization. The whole place is down past the paper mills and slaughterhouses on the swampy side of town, sitting on barbed-wire acreage just 2,000 feet from the county jail.

W.E.B. Du Bois once asked what it felt like to be a problem. Certain people have problems. Others are condemned to being problems. That is most apparent in the adult criminal justice system, though it is reflected in the juvenile one, too. The adult system has long been tasked with resolving people deemed to be problems, and in large measure, that remains the case despite the rise of rehabilitative and restorative justice models. Using substances means one is an “addict.” Violating the law makes one a “danger to society.” A person, so reclassified, goes to a designated place for problem people—a concrete facility with barbed wire, armed guards in towers, and padded isolation cells.

Rehabilitation in such places is a distinctly secondary consideration, and it is not allowed to override the treatment of the person as a problem. The Supreme Court had to tell a prison to let a chaplain touch a convict undergoing lethal injection because prison officials initially thought that gesture too decent. First-class opioid-use rehabilitation is available in only a small minority of prisons. Family visitation helps manage problems, but letting mothers and fathers hug their sons and daughters is considered too humanizing. Conjugal visits have given way to video “visitation.” (As one North Carolina official explained in justifying this change, “You certainly don’t want a young child to be hugging a family member and their time expires and you have to pull them out of their arms.”)

Even after one graduates from whatever rehabilitation is on offer, an adult convicted of a criminal offense remains a “felon,” a status virtually as unchangeable as the color of one’s eyes—and one far costlier to one’s ability to earn a living. Adults who run afoul of the law are thought of as problems, then treated in a way that makes their problems grow.

We tell ourselves we treat kids and teenagers differently. The entire reason we have a separate juvenile criminal system is society’s discomfort with writing off people before their 18^th birthday, during a time in life characterized by (in the Supreme Court’s words) “immaturity, irresponsibility, impetuousness, and recklessness.” Perhaps most of us remember having problems when we were like this. There are plenty of people who cannot imagine calling the police on young people they know and love. Sara steals $100 while babysitting? Take away her car keys, yell sense into her, and make her go watch the kids for free until she’s learned her lesson. Joey had a beer at his friend’s house and they got into a tussle? Call the friend’s parents, make Joey write a letter, and have him pass the sniff test every time he comes home. Sara and Joey get to have problems. They’re good kids just making dumb mistakes.

On some level, we recognize that kids and teenagers in poorer neighborhoods, where the temptation to break the law is even stronger, deserve the same leeway. So we promise ourselves that we’ve come up with a gentler, more humane system.

Does the system deliver on that hope? Sometimes. Most of the young people I represented did end up getting help that my adult clients could not reasonably expect from the system. There was the teenager struggling with truancy who received a few months’ respite at a good camp while his grandfather cleared out cockroaches from their home. There was the girl who finally opened up after months of proceedings and admitted that her aunt—whom she had been accused of committing battery against during a fight—was in fact abusing her. I will never forget the trust it took for these young people to acknowledge that they weren’t the problems.

But the courts definitely deem some youth to be problems. The Supreme Court specifically tells judges that if they decide some young Alyssa demonstrates “irreparable corruption,” they can sentence her to life in prison without the possibility of parole. For all our compassionate understanding that kids and teenagers have problems, apparently there are things they can do that break our faith.

As for those who are not deemed broken beyond all hope, they are sometimes dehumanized, too. In Louisiana, just three years ago, the governor temporarily transferred 25 mostly black boys incarcerated by the juvenile justice system to live in the former death row unit of the state’s infamous Angola prison. He did so after a mass escape led to a shooting, revealing serious security gaps endangering detainees, staff, and the community. Youth aren’t always treated differently from adult prisoners after all.

Still, as evidenced by the Louisiana shooting, there are kids and teenagers who commit killings, rapes, and robberies. While they very often do have serious problems, these are not ones that can safely be wrestled with in the community while those facing them continue to cause other people new problems. Nor would it be justice not to bring these young people to account for their crimes. So facilities will have to continue to exist.

And so must scrutiny. These facilities must be used as a last resort. If a young person’s problems can be handled in the community, that is where they must be addressed. The court I practiced in relied on family therapy, mentorships, social service roundtables, and regular conversations with school administrators for much of its work. Most problems were handled inside the very community where they arose, rather than being treated as a reason to pull a young person out of that community altogether. For most kids, teenagers, and families, that was what they needed—and a harsher approach would have caused more disruption with less to show for it.

As for those youth who do have to be incarcerated, systems and officials must be pressed again and again to treat facility personnel issues no less seriously than they would those in schools, hospitals, or any other setting with vulnerable people. A system that cannot police its own officers will not be able to police those entrusted to it. And the last thing kids and teenagers inclined to disorder, violence, and crime need to see is that these things can be overlooked so long as the one committing them has power.

Rehabilitation must also be the driving principle for facilities. Religious chaplaincy, psychological care, family repair, substance abuse treatment, educational opportunity—these are not aspirations. They’re the bare minimum.

Here’s one more: accountability. Those who have been harmed by the system deserve a way to have their complaints heard and the injustices they suffer recognized in a court of law. They deserve some measure of compensation. So long as it remains exceedingly difficult to sue government officials, these remedies will remain illusory. Detained youth who allege that juvenile officers sexually assaulted them, as did a 14-year-old in Tennessee, cannot recover damages from governments unless they can prove that the officers were inadequately vetted, trained, or supervised. Kids and teenagers who claim that officers were grossly negligent in failing to prevent rape by fellow detainees cannot recover: As a federal appeals court held in the case of an 11-year-old Alabama boy, only deliberate indifference by officers can authorize damages. These decisions reflect a system that protects adults in authority rather than the young people entrusted to them. And they reinforce the impression that kids and teenagers will be punished severely for their infractions while those in power will escape scrutiny for adult brutality.

While the system sometimes does deliver rehabilitation, in contrast with the young people who endure it, it does not merely have problems. It is one. Scrutiny on it should never be less than that placed upon the young people imprisoned by it.