THE BLOG
12/03/2015 11:50 am ET | Updated Dec 03, 2016

Two Steps Forward, One Step Back: America's Better, But Still Broken, Juvenile Justice System

Every day, it seems, criminal justice reform is in the news, and America finally seems to be taking the mass incarceration crisis seriously. Yet this focus has not extended to the progress made, and problems still faced, by young people caught up in the justice system. Although we are sending fewer young people to juvenile detention facilities, black youth are now even more likely to be locked up than their white peers, according to research collected by the Marshall Project. Unfortunately, this mixed record of progress holds true for our juvenile justice system generally; we've made a lot of progress in the way our justice system treats young people, and yet we still have so far to go.

Forty years ago, states and localities could -- and did -- lock up youth who were charged with minor or serious misbehavior in adult jails. Keeping children in adult jails put them at astonishingly high risk of physical and sexual assault, suicide and a host of other terrible consequences. There were no restrictions on locking up youth who engaged in noncriminal behaviors like skipping school or running away from home. States weren't even required to consider whether they were locking up more kids of color than white kids.

In 1974, Congress passed, with strong bipartisan support, the Juvenile Justice and Delinquency Prevention Act (JJDPA). That law, in its original form and in its later reauthorizations -- most recently in 2002 -- created core protections for youth that exist to this day. Yet for each step forward, we've still taken a half step back:

• We no longer lock up youth charged as juveniles in adult jails, except in very limited circumstances, and even then they must be separated by sight and sound from adults. Yet, these protections don't apply to youth who are tried as adults -- in some states, including New York, this happens automatically (for every offense) for young people who are 16 or older. Facilities often place young people in solitary confinement in order to separate them from adults--which we know creates trauma and stress and can lead to mental health issues and even suicide.

• States are now required to assess and address disproportionate minority contact with the justice system at all points in the process (e.g., arrest, charging decisions, and sentencing). Yet many states still struggle with what data to collect and how to do that accurately, much less how to actually address the problems they identify. As discussed in the Marshall Project report, we're actually moving in the wrong direction, and locking up an even more disproportionate percentage of youth of color. Black families in this country must send their children to school each day knowing that they are at much greater risk of being arrested for minor misbehaviors. No matter how bad things were before, that simply doesn't feel like progress.

• The JJDPA also prohibited youth from being locked up for non-criminal behavior like truancy or running away. Though there are some very big exceptions, there are far fewer kids being locked up for these acts (known collectively as status offenses), due in part to the work of the Coalition for Juvenile Justice, the National Council of Juvenile and Family Court Judges, and others. But kids still can be -- and are -- locked up for these actions thousands of times per year. Running away from an abusive home environment or skipping school when you are being bullied is not an "offense," it's simple survival. Kids who chronically run away from home, are truant, or come into conflict with their families usually have a lot going on under the surface, but the juvenile justice system is not the place to address those issues, and even one child locked up for these behaviors is one too many.

There is some hope on the horizon. Thanks to research and recommendations from the National Academy of Sciences, the Department of Justice, Justice Policy Institute, and others, we now know more than ever about adolescent development, the impacts of children's exposure to violence, and the dangers of detention. Congress is currently considering legislation that would re-authorize and improve the JJDPA, bringing updates that address some of what we've learned in the past decade about the adolescent brain, the effects of trauma, and what really works to put kids on the path to healthy and productive adulthood (that's an entirely different blog, but in 6 words: fewer lockups, more community-based services). Advocates are starting to shine a light on, and working to improve responses to, underserved populations--children who the juvenile justice system was not "built for" and/or often doesn't see (e.g., trafficking victims, LGBT youth, runaway and homeless youth, youth with disabilities). More and more Americans are learning about the inequities in our justice system and calling for change every day. The challenge now is for us to build on that momentum, and take three steps forward and no steps back.