Leiden Law Blog

Juvenile Justice Reform; Lessons Learned from the United States

Juvenile Justice Reform; Lessons Learned from the United States

Do you want to learn how to lock up as many children as possible?!” This was the rather cynical response that I heard on several occasions when I told people – both Dutch and American – that I was planning a research trip to the United States to learn about their juvenile justice systems and to gain inspiration for my doctoral research on the pre-trial detention of juveniles in the Netherlands. Of course, there is a legitimate reason for this. The United States is still the leading country in the world by far when it comes to the detention of juveniles; on any given day approximately 70,000 (!) youths are detained in a facility in the United States (Aizer & Doyle, 2013).

At the same time, there are also lots of efforts to reform juvenile justice systems in order to decrease juvenile detention rates in the United States. A prime example is the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative (JDAI), which has over 200 reform sites throughout the entire country. In fact, many of the JDAI reform efforts happen to be quite successful.

Therefore, the Dutch juvenile justice system might very well benefit from the JDAI reform strategies for reducing juvenile pre-trial detention. After all, under the case law of the European Court of Human Rights the Netherlands is obliged to safeguard that the pre-trial detention of juveniles is only used as a last resort and for the shortest possible period (Korneykova v. Ukraine, §44). So, I went to the United States last month.

My Research Trip to the United States

During my three-and-a-half week stay in the United States in September 2013, I visited five, so-called ‘high crime’ cities in the Eastern part of the country – Chicago, New York City, Philadelphia, Baltimore and Washington DC – to learn about their response to juveniles in conflict with the law, and more particularly about the use of (alternatives to) detention. In order to do so, I visited youth courts, juvenile detention centers and projects meant as alternatives to juvenile detention, such as community-based shelter homes and evening reporting centers. In addition, I attended several meetings and a symposium on juvenile justice reform at Northwestern University School of Law, Chicago.

So, what have I learned? More importantly, which findings could be useful for the juvenile justice system in the Netherlands? I will limit myself to three main ‘lessons’.

Lesson 1: Controlling the Front Gates; Objective Decision Making

One of the main objectives of the JDAI reform efforts is obtaining juvenile pre-trial detention reduction through what they call ‘controlling the front gates’. In other words, JDAI aims at safeguarding that only high-risk juveniles – in terms of reoffending or absconding – in severe cases will enter the juvenile detention system.

An important strategy to achieve this, is by replacing subjectivity and inconsistency with objective decision making at the front gate. This implies that the outcomes of the risk assessment at the detention intake (i.e. immediately after the arrest) are leading in the intake officer’s decision on whether a juvenile should stay in custody until the first pre-trial detention court hearing.

The Dutch juvenile justice system does not have a similar objective, risk-based filter at the front gate. According to Dutch law, juveniles can be remanded in custody until the first pre-trial court hearing when the (assistant) prosecutor decides this is ‘in the interest of the (police) investigation’ (Art. 57(1) CCP). In my view, this rather vague and subjective criterion does not, as such, sufficiently safeguard the human rights principle that the pre-trial detention of juveniles should only be used as a last resort.

Therefore, JDAI’s objective, risk-based approach to juvenile detention admissions can be a source of  inspiration. In fact, the recently introduced Landelijk Instrumentarium Jeugdstrafrechtsketen – and particularly its pre-selection risk assessment tool – could provide new opportunities for a move towards a more risk-based approach in early pre-trial detention decisions in Dutch juvenile justice.

Lesson 2: Alternatives to Pre-trial Detention

As part of JDAI reform efforts, several juvenile justice systems in the United States have developed an extensive continuum of alternatives to pre-trial detention based on a juvenile’s risk level, ranging from a placement in a shelter home or home detention for high risk youths to community monitoring by probation staff for mid and low-risk youths. This continuum implies that the court should always use the least restrictive alternative to detention that is considered appropriate to moderate the juvenile’s risk level.

In the Netherlands, the law provides for a wide variety of alternatives to juvenile pre-trial detention as well. In the Dutch system these alternatives have the form of special conditions that can be attached to the suspension of pre-trial detention. In addition, the Dutch juvenile justice system also prescribes that the court should always use the least restrictive alternative to detention (the principle of subsidiarity).

Yet, Dutch law does not explicitly link the restrictiveness of alternatives to pre-trial detention to the juvenile’s risk level. In fact, the law provides hardly any guidance to judges as far as decisions regarding the use of alternatives to pre-trial detention are concerned.  In my view, the development of a risk-based continuum of alternatives to pre-trial detention could provide judges with more guidance regarding their pre-trial detention decisions and provide an additional safeguard against arbitrariness.

Lesson 3: Data-driven, Collaborative Juvenile Justice Reform

When visiting various JDAI sites in the United States, I was pleasantly surprised that reform efforts to reduce juvenile detention actually appear to be taken seriously by almost all stakeholders within the juvenile justice system.

In the Netherlands, attempts at juvenile justice reform are often limited to NGO’s or legal scholars publishing reports with recommendations to the legislator or judiciary, based on the hope that some stakeholders take these up and take action. Or individual politicians who suddenly come up with new and, in their opinion, more effective interventions for dealing with troubled juveniles.

JDAI, in contrast, takes a well-structured, data-driven and collaborative approach to juvenile justice reform. It shows how reform can be successfully organized by indicating and addressing flaws within a system through extensive data collection, followed by the establishment of active collaboratives of divergent key stakeholders within the juvenile justice system – e.g. the judiciary, bar, probation, police, youth agencies – to tackle these flaws.

Concluding Remarks

Notwithstanding the abovementioned promising reform efforts in the United States, it should be emphasized that there is still a world to win. During my research trip, I came across several issues of major concern. Socio-economic issues, such as the extreme poverty and (gun) violence in certain disadvantaged neighborhoods. But certainly also issues within the juvenile justice systems themselves. For example, systems in which children from the age of seven (!) can be held responsible for their delinquent behavior and systems in which sixteen and seventeen year-olds are automatically tried as adults are still not uncommon in the United States. Besides, issues of overpopulation in juvenile detention facilities and disproportionate minority confinement are still very much present.

Nevertheless, I hope to have clarified that there are promising developments going on within several juvenile justice systems in the United States; developments from which the Dutch juvenile justice system could potentially benefit. I regard it as one of my challenges for the coming years to translate some of these promising American ‘best practices’ to the Dutch juvenile justice context within my doctoral research. To be continued…

4 Comments

Yannick van den Brink
Posted on December 19, 2013 at 08:53 by Yannick van den Brink

Dear Kevin,

Thank you for your comment.

Before responding to your remark, I want to emphasize that I am a Dutch researcher, who visited the United States to be informed about juvenile justice reform efforts in your country. By no means do I consider myself an expert in American juvenile justice. This means that, when it comes to information about juvenile justice in the United States as presented in this blog, I rely heavily on the American sources which I came across during my visit.

As referred to in my blog, Aizer & Doyle (two American academics) mention “70.000 juveniles in detention on any given day”. See: A. Aizer & J.J. Doyle Jr., ‘Juvenile Incarceration, Human Capital and Future Crime: Evidence from Randomly-Assigned Judges’, NBER working paper series; July 2013. As to this number, they also refer to the ‘Census of Juveniles in Residential Placement’. Besides, the Kids Count Snapshot of JDAI (2013) seems to present a comparable number for 2010 by stating that “the number of young people in correctional facilities on a single day fell to 70,792 in 2010”.

Contrary to Aizer & Doyle (2013), you explicitly point out that this number includes both children in Detention Facilities and children in Residential Facilities. I do understand the importance of making this distinction, particularly in the context of JDAI. Yet, it might also be interesting to know that in the Netherlands this distinction is less relevant, at least when it comes to the definition of ‘detention’. In line with the case-law of the European Court of Human Rights, the definition of ‘detention’ is primarily linked to the concept of ‘deprivation of liberty’. This means that, under Dutch law, the definition of ‘(pre-trial) detention’ (in Dutch: ‘voorlopige hechtenis’) is not limited to placement in a secure detention facility, but could also include court-ordered placement in a residential facility and even house arrest (Art. 493(3) Dutch CCP).

Finally, I think your comment adds an important remark to ‘Lesson 3’ in my blog, by implicitly showing a potential risk of heavily relying on data (i.e. numbers) as a basis for policy and reform. Your comment raises awareness that numbers are not always presented uniformly (different sources might present different numbers), can be multi-interpretable and might sometimes even be potentially misleading.

Thanks again for your insights.

All the best,
Yannick

Kevin Hess
Posted on December 18, 2013 at 18:35 by Kevin Hess

70,000 kids in detention per day??  This has to be an “apples to oranges” comparison used to mislead the uninformed.  In 2011, according to the Census of Juveniles in Residential Placement, the number of juveniles in a Detention Center was 21,090 for the selected census date.  This is a far cry from the number used in this article.  It is very important to make a distinction between Detention and Residential Facilities.  JDAI is aimed at reducing detention population, so using residential population is not the same thing.  I just wanted to clear this up.

Yannick van den Brink
Posted on October 23, 2013 at 09:11 by Yannick van den Brink

Thank you for sharing this, Elton.

While this blog is mainly focusing on the potential of JDAI reform strategies for Dutch juvenile justice, I fully agree with you that it is very important to be aware of the complexity of successful implementation of - at least in their essence - promising reform strategies in practice.

Objective decision making, a risk-based approach to alternatives to detention, collaborative reform efforts, it is all easier said, than done. Your insider’s view makes this very clear. Yet, as you said in your final remark, this should not be a reason to stop striving for a more fair and just juvenile justice system.

I will definitely take your comments into account in my further research. Thanks.

Elton Anglada
Posted on October 22, 2013 at 22:36 by Elton Anglada

As someone involved in the daily struggle to protect the rights of juveniles charged with delinquent acts, I often lose sight of the bigger picture. With my attention continuously focused on all this is wrong, I don’t always see how much is right.  Sometimes it takes an outsider’s view to open one’s eyes.  So thank you for that. 

And you’re absolutely right, the objectives of JDAA, as well as the juvenile justice policy behind it, (i.e., reducing juvenile detention rates), are laudible.  Having said that, there is still much to be done.  This is juvenile justice, not chemistry.  Try as we may to “objectify” results, when all is said and done, the scoring, interpretation and implementation of risk assesment tools are largely subjective undertakings.  Flaws in the risk assessment tools, permitted override options, and dissagreement about what constitutes an “alternative” to detention all work ot make a successful implementation of the JDAI initiative more complicated.

It won’t be perfect, (at least initially), but hopefully the JDAI initiative will result in lowered detention rates and fairer results.

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