We Must Stop Criminalizing Adolescence

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Tamar BirckheadRecently I represented a 14-year-old boy, who I’ll call Wayne, in a local juvenile court in North Carolina. Upon entering the courthouse, Wayne, who was alleged to be “undisciplined,” had to walk past court officers and go through the metal detector, ride the packed elevator, and stand before a judge who regularly presided over court sessions for adult criminal defendants.

After Wayne’s case was called by the prosecutor, his father reported that his son was not going to school, had a “smart mouth” and wouldn’t come home on time.

“With your help,” Wayne’s dad told the judge, “I want to get him on the right path.”

Wayne quietly acknowledged that he had made “wrong choices” and hung around with the “wrong people,” but as the boy glanced over his shoulder at the crowded courtroom that was open to the public, he looked defeated. Although the judge took time to speak with the teen, trying to get a sense of Wayne’s career goals and emphasizing the importance of following the rules, it was clear to me by the end of the hearing that formal court involvement in the case was inappropriate and, quite likely, counter-productive.

Ultimately, Wayne was placed on three months of protective supervision, requiring him to report regularly to the juvenile probation officer, draft a five-year life plan to present to the court, and abide by his father’s rules. Wayne’s mother, who was in a residential drug-treatment facility, was not present, but the judge apparently knew her from her own criminal case, a fact he announced matter-of-factly as Wayne looked down at his feet.

When the first juvenile court was established in Chicago in 1899, there were no distinctions made between children who were alleged to have committed criminal offenses and those who were alleged to have violated the classic norms of childhood, such as abiding by a parent’s rules, attending school and respecting authority. Instead, these two categories of children’s behavior were evaluated under the same guidelines in juvenile court, and the sentences (or dispositions) imposed upon them were not driven by the severity of the offense but by the apparent needs of the child as determined by the court.

As a result, for nearly a century, the juvenile court treated children adjudicated delinquent of committing crimes the same as those adjudicated for so-called status offenses, which covers such behaviors as running away from home, possessing alcohol or tobacco, and being “outside the disciplinary control” of their parents or guardians. Practically, this meant a child charged with a serious criminal charge but with few identifiable needs could receive a period of probation or no supervision at all, while children who displayed adolescent misbehavior that was noncriminal in nature could be committed to a juvenile institution until their 18th or 21st birthday if the court’s estimation of their underlying needs called for it.

Today, tens of thousands of children like Wayne are funneled into the juvenile court system each year, with data showing that more than 116,000 cases nationwide were sent to juvenile court for noncriminal behaviors in 2011, with 8,800 of these cases resulting in some form of secure detention.

Research has shown that incarcerating status offenders can exacerbate their underlying problems, as they come in contact with more serious offenders, negatively affecting their own outlook and behavior. Although many states prohibit the incarceration of young people for committing a status offense in violation of a court order, the majority of states still allow it, and a bill introduced in April 2014 by Rep. Tony Cardenas, D-Calif., to forbid states from locking up kids under such circumstances is, at presstime, languishing in a House subcommittee.

States justify the continued prosecution of status offenders in juvenile court on the basis of preserving families, ensuring the safety of the public and preventing youth from entering the delinquency or criminal justice system. Research shows, however, that courts are not equipped to address the causes of problematic behaviors and are unable to provide immediate intervention. At a time of scarce resources, we know that court-based responses are more expensive than community-based prevention and diversion services, which produce better outcomes.

Wayne’s father cannot be faulted for wanting assistance in ensuring that his son’s issues and problems are effectively addressed. Yet, on Wayne’s behalf — as well as all the tens of thousands of other young people who are referred to juvenile court for status offense behaviors each year — we must provide the care, treatment and services that they need without criminalizing adolescence.

Tamar Birckhead is a criminal defense attorney, law professor and director of clinical programs at the University of North Carolina at Chapel Hill.