How to Keep Kids Out of Jail

I intended this to be an upbeat resource-rich article highlighting success stories, strategies and promising new approaches to keep children out of the juvenile justice system. In the course of researching for this paper I certainly did find some promising trends and programs and I will mention them and explain why they offer exciting possibilities for Wyoming's troubled youth.

Unfortunately we must face the fact that Wyoming's approach to juvenile justice combines all of the worst mistakes in juvenile justice. According to the experts these outdated and contraindicated approaches may correspond to lifetime criminal recidivism from our youth.

We have explored the core concept of How to Keep Kids Out of Jail further in three additional single-topic blogs: Outsourcing School Discipline to the Judicial System; Teen Court: a Promising Diversion Option; and Looking Forward for Wyoming's Juvenile Justice System.

In an influential publication entitled Keeping Adolescents Out of Prison, the authors give a historical perspective on how states decided to treat juvenile crime with harsh punishments, often incarcerating children as adults. According to this study, harsh juvenile punishments were a fear-based policy based largely on an erroneous concept popularized by John DiIulio, a scholar of criminal behavior who described "…adolescents bent on murder, rape, assault, burglary and drug dealing." DiIulio also wrote of "…vacant stares and remorseless eyes…" of youth who "…gave off a buzz of impulsive violence…"[i]

The authors of Keeping Adolescents Out of Prison are Laurence Steinberg, PhD, a professor of psychology at Temple University and Ron Haskins, co-director of the Center on Children and Families at the Brookings Institution and a senior consultant at the Annie E. Casey Foundation. According to these experts, the "youthful super-predators" predicted by DiIulio did not emerge. In fact, the following chart, taken from their publication, clearly shows that violent juvenile crime decreased significantly from the time of DiIulio's predictions in 1995.

According to Steinberg and Haskins, overly harsh punishments do not work as a deterrent and, in fact, create an environment in which escalation of criminal behavior is more likely. Anticipating push-back from what prosecutors and law enforcement might consider too-soft policies and recommendations, the authors make it clear that juveniles should be held responsible for their antisocial behavior; but not with the same consequences as adults.

The issue is not whether the adolescent's behavior should be completely excused because of immaturity. Rather, it is the degree of responsibility adolescents should bear for criminal acts. The public wants ado­lescents held responsible for their crimes—and so do we. But a policy based on mitigation because of immaturity can balance the juvenile justice goals of accountability and deterrence with the legal principle of fair and proportional punishment.

Some states are actively pursuing alternative approaches to juvenile justice with very promising results. One primary focus of national experts in juvenile justice is to avoid the School to Prison Pipeline.

The "School to Prison Pipeline" is described by the ACLU and other juvenile advocates as a trend whereby children are funneled from public schools into juvenile and criminal justice systems. Infractions or behaviors that in previous school eras would have meant a trip to the principal's office or possibly a suspension now result in referrals to "School Resource Officers" and formal criminal charges. Another disturbing public school trend is the very rigid application of Zero Tolerance policies, which also frequently result in formal criminal charges.

According to recent research reported on by NPR, the New York City's criminal justice system processed 50 percent more juveniles per month during the school year than during months when school was not in session. Former New York Department of Probation Commissioner Vincent Schiraldi states that students "…aren't better behaved during the summer than the winter, they're just less surveilled [sic]."

The Keeping Adolescents Out of Prison study indicates that unless juveniles are introduced to a criminal lifestyle by over-punishment and incarceration with adult criminals, their antisocial behavior will disappear on its own as these children mature.

For the overwhelming majority of teens, their antisocial behavior dissipates in late adolescence, indicating that they have over­come "a contemporary maturity gap [that] encour­ages teens to mimic antisocial behavior in ways that are normative and adjustive [sic]." These findings raise the unfortunate possibility that many adolescents who experiment with crime under social pressure get caught and are then subjected to harsh punish­ment, including incarceration in the same facilities as adults—punishment that, ironically, increases the chance that they will continue to behave in antisocial ways upon release.[ii]

Hundreds of jurisdictions across the country are practicing innovative alternatives to overly harsh punitive justice. Two such approaches, Teen Courts and Ghetto Economics, really stood out as being both effective and practical. In addition, neither of these approaches appears to cost very much money to implement. Cost of alternative programs tends to be the primary barrier to adoption for most jurisdictions.

In a "Teen Court" first time juvenile offenders with low-level nonviolent crimes have the opportunity to be "tried" by a jury of their peers. In cooperation with local prosecutors' offices, schools in Michigan and other states informally adjudicate "crimes" and develop innovative, and frequently in-school, punishments which appear to genuinely deter inappropriate juvenile behavior. According to an NPR article, more than 1,000 school districts across the country are instituting similar Teen Court programs. The most common penalty "…involves letters of apology and community service…" The article also notes research showing youthful offenders tried in teen court have a lower recidivism rate although no source is mentioned.

Another report comes out of New York and although it does not appear widespread yet, it brings some fascinating new ideas. Asean Bey, a former gang member from New York City has begun working with small groups of kids in New York City. According to Bey, most of these inner-city kids have no idea of life outside of "…the 4 block radius that they know…".

Bey is using economics to educate these youths. This is not economics as it is normally encountered at a high school or college level. Rather, this "Ghetto Economics" tells inner-city youth that prisons are big business, sometimes even traded on the stock market, and more profitable when occupancy levels are high. Bey explains that by their criminal behavior these youth are not reaping any economic gains of their own but only adding to someone else's profit: the prison industry. Bey introduces concepts of money management and stresses that making choices that profit someone else and cost them and their families is bad economics.

Finally, to revisit the School to Prison Pipeline: the basic concept is that kids in public schools are being criminally punished for minor infractions which should never have risen above school-based discipline. While School Resource Officers may sound innocuous, the presence of uniformed, salaried police officers in schools logically leads to criminal charges. Rigorous application of Zero Tolerance policies has kids who commit nothing more than youthful hijinks too frequently facing significant criminal consequences rather than a trip to the principal's office.

Earlier this year a story emerged out of Summerville, North Carolina. A sixteen-year old special needs student was given an assignment to write a fictional story designed to mimic a social media post. The child wrote a story about killing his neighbor's pet dinosaur with a gun. Any rational person should read the story and recognize that the most relevant word was dinosaur. Unfortunately, the child's special needs teacher focused on the word "gun" and reacted in a most disproportionate and inappropriate way.

Police were summoned; the boy was searched, suspended from school, handcuffed and arrested. That's right, according to Zero Tolerance policies even the mention of the word gun in a fictionalized account of killing a dinosaur is criminal behavior, even for a special needs teenager.

While these examples may seem far from the state of Wyoming's unique challenges with juvenile justice, they accurately reflect problems we face here, and potential solutions. Consider:

• Wyoming is the only state in the union not participating in the JJDPA, which is designed to keep children out of adult prisons,
• Very few Wyoming children are tried in the few dedicated juvenile courts we have; most are tried in district or county courts—which pride themselves on treating all offenders exactly the same irrespective of age.[iii]
• Wyoming's incarcerated juveniles are largely in jail for non-violent and frequently non-criminal acts—predominantly status offenses and technical violations.

With the exception of alcohol violations, Wyoming strongly outpaces national arrest levels for every non-violent offense, while national juvenile arrest numbers for the more serious crimes are significantly higher than Wyoming's.

With that perspective, the negative effects of incarceration-based punishment for juvenile offenses are even more relevant for Wyoming than for the rest of the country. Instead of criminalizing and incarcerating our youth, we should set up remediation and deterrence programs that actually work. The state of Wyoming should revisit the policy decisions that led to School Resource Officers in virtually every Wyoming school. In states with high levels of gang activity and high levels of violent juvenile crime such policies and the accompanying costs might make sense. What seems more reasonable in Wyoming, however, is Teen Court programs and other genuinely effective juvenile delinquency prevention options.

[i] John J. DiIulio Jr., "The Coming of the Super-Predators," Weekly Standard 1, no. 11 (November 1995): 23–28.

[ii] Terrie Moffitt, "Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy," Psychological Review 100 (1993): 674–701.

[iii] Comments from District Court Judge at "You be the Judge" conference in 2014.