Wednesday, January 25, 2017

Juvenile Justice Trends in the US Could Provide Lessons for China’s Courts (Part I of II)

A young offender confined in the US. Image credit: Juvenile in Justice Project.
Amid high-profile reports of violence among children under the age of 14 in China, voices from several corners of Chinese society have called to lower the age of criminal responsibility. However, some Chinese legal experts remain opposed to adopting a more punitive juvenile justice regime and a look into the recent history of the US juvenile justice system supports a more cautious approach. Since 2000, legislatures throughout the United States have been scrambling to correct excessive punishments imposed upon young offenders in the 1980s and 1990s. Since 2000, several states have enhanced the authority of their juvenile courts, and by 2015, 41 states had raised to 17 the maximum age for transferring offenders to criminal court (often called “adult court”).

In China, we are seeing developments that mirror the turn the US took in the 1980s and 1990s against a rehabilitative and developmental approach to juvenile justice, likely also driven by an upsurge in media reportage of violent cases among the very young. By the mid-1990s, some experts infamously began referring to American juvenile offenders as “super-predators”; the number of incarcerated youth soared, states across the US lowered the minimum age to transfer juveniles to criminal court, imposed mandatory minimum sentences on juveniles, and even allowed for juveniles to face life without parole (which was ultimately reversed in 2012 by the US Supreme Court).

The more recent attempt in the US to reverse decades of excessive juvenile punishment could prove instructive for Chinese legal officials contemplating various reform “models” for their country’s juvenile justice tribunals. The following sections discuss three major categories of state-level court reforms designed to rein in costly and unnecessary juvenile incarceration in the US: (1) implementing non-custodial measures for juvenile offenders; (2) increasing judicial authority over the transfer of juveniles from juvenile court to criminal court; and (3) enhancing the confidentiality of juvenile records and court proceedings.

Non-Custodial Alternatives to Juvenile Incarceration

Perhaps the most important method of limiting juvenile incarceration and recidivism put forth is the implementation of non-custodial alternatives to incarceration. The recent proliferation of non-custodial measures in the US is in part the result of scientific advancements in the fields of adolescent neurology and developmental psychology that were unknown to policymakers in the 1990s. The findings indicate that the prefrontal cortex of the adolescent brain is not fully developed, inhibiting their decision-making abilities and mitigating the culpability of very young juvenile offenders. Chart 1 lists nine “Comeback States,” as identified by the National Juvenile Justice Network, which since 2001 have been particularly successful in implementing non-custodial alternatives for juveniles in response to new findings in neuroscience.

Chart 1. Changes in Juvenile Confinement in American “Comeback States” Since 2001.
“Comeback States” that have seen dramatic declines in juvenile incarceration.Source: NJJN
In these “comeback” states, scientific advancements have spurred changes aimed at rehabilitating juvenile offenders, especially those under 16, while also reducing the risk to society with lowered juvenile recidivism rates. For example, in Ohio, juvenile court judges can sentence offenders to non-custodial measures including “supervised release programs…home detention, electronic monitoring, day and evening reporting centers, and local treatment programs.” In Connecticut, a 2004 law, requires officials to create a continuum of community-based services, including substance abuse and mental health treatment, that juvenile courts can implement to address problems facing young offenders without resorting to incarceration. In California a 2014 law ensures greater access and usage of non-custodial alternatives by requiring juvenile court judges to consider factors including age and mental health status before deciding whether to transfer a juvenile offender to the criminal court system.

Advancements in scientific research have also helped limit harsh penalties such as solitary confinement on juvenile offenders. Because of its proven to be severe effects on the very young, solitary confinement should not be used for punishment of young offenders, and non-punitive solitary confinement should only be used when a youth is engaging in behavior that creates an imminent risk of serious harm.

With more than 65 percent of the 2 million youth arrested each year in the US suffering from some form of mental health disorder, the use of mental health rehabilitation as a non-custodial measure has become increasingly widespread. For example, in 2005, the state of Washington expanded mental health services to address treatment gaps among juvenile offenders and a Colorado law now allows juvenile judges to impose suspended sentences to allow rehabilitation and treatment for juveniles with developmental disabilities or mental illness. Alongside mental health issues, the intersection of gender is a worthy consideration in developing a juvenile justice system that emphasizes non-custodial measures. Juvenile girls tend to be at greater risk in developing serious mental health problems, as noted in a 2012 Department of Justice report stating that adolescent “girls are more likely than boys to attempt suicide and to self-mutilate.” Further, juvenile girls are also less likely to pose a significant public safety risk than their male counterparts and “would be far better served in nonresidential treatment facilities close to their own homes." The fact girls are more likely to suffer from serious mental health issues while also posing a significantly lower public safety risk suggest gender might be another factor for juvenile judges to consider in deciding on penalties for young offenders.

Evidence-based measures have provided juvenile court judges with several community-based intervention options to reduce incarceration rates, without increasing public expenditure. American states are finding new ways to fund community-based alternatives. In Georgia, for instance, the ability of courts to impose non-custodial sanctions has been supported by an incentive grant program to distribute federal and state funding to counties serving the state’s at-risk youth. Provisions in Ohio and other states save scarce public funds by shortening juvenile detention time.

Read Part II here.