Connecting the Dots

New Jersey Juvenile Justice: Past, Present and Future

 

Bruce D. Stout

University of Medicine and Dentistry of New Jersey

 

Association for Children of New Jersey’s Annual Conference

Eatontown, New Jersey

December 2, 2003

 

 

As the Association for Children of New Jersey celebrates twenty five years of advocating for the well-being of the State’s children and adolescents, it is only fitting that the Association examine the current state of New Jersey’s system for responding to youths who are accused of breaking the law.  ACNJ’s roots in juvenile justice reform are deep and ACNJ’s research and advocacy have been integral to many of the major policy changes that New Jersey’s juvenile justice system has undergone over the last twenty five years.  ACNJ’s anniversary provides an excellent opportunity to examine the changes that have taken place in New Jersey’s juvenile justice system over the last quarter century and to examine the current state of the system.  Such examinations can lead to the identification of policy issues that still need to be addressed and the development of an action plan for system improvement.

Some of the systemic problems that New Jersey’s juvenile justice system confronts today have existed for quite some time.  Many of these problems have not been ameliorated, despite repeated attempts to address them.  It often seems as if some these problems are intractable.  Evaluating the current state of New Jersey’s juvenile justice system in historical context can be helpful because it clearly illustrates that, despite the existence of some seemingly intractable problems, significant strides have been made in improving New Jersey’s juvenile justice system.  This is encouraging and leads one to be hopeful that we can continue to improve the quality of the system designed to respond to children and adolescents accused of breaking the law. 

The juvenile justice system is predicated on the idea that the “state” is acting as “parens patriae,” or as benevolent surrogate parent.  As a result, as recently as the 1960s, juveniles typically received none of the due process rights that adults enjoyed.  There was no right to confront witnesses against you, for example.  There was no need, it was thought, to establish safeguards that protected children’s rights, because the juvenile justice system was ostensibly acting in children’s best interests.  Juveniles accused of committing crimes could also be held with adults, in adult jails and prisons.  Juveniles who were not accused of any crime, but rather were accused of being something, such as “incorrigible” or “truant,” (so called “status offenders”) could be also institutionalized with adults.  The right to counsel had not been established.

 

National Level Changes

The 1960s brought significant change to juvenile justice.  In the milieu of the civil rights movement and President Lyndon Johnson’s “war on poverty,” attitudes about delinquency began to change and an increasing focus was paid to community-based prevention and intervention.  In 1968 Congress passed the Juvenile Delinquency Prevention and Control Act.  This Act recommended that “status offenders” be removed from juvenile court jurisdiction, encouraged diversion from formal court processing for many youth accused of committing acts of delinquency, and endorsed community alternatives to institutionalization. 

In 1969 the U.S. Senate created a Subcommittee to Investigate Juvenile Delinquency.  This Subcommittee, under the chairmanship of Senator Birch Bayh of Indiana, held five years of public hearings on juvenile delinquency, the culmination of which was the 1974 Juvenile Justice and Delinquency Prevention Act.  The JJDP Act, as it is commonly referred to, made awards of state block grant funds contingent on compliance with “core requirements” in the Act.  This put the federal government in the position of encouraging state action on key policy goals, a leadership role that has significantly changed the face of juvenile justice throughout the country.  The 1974 Act required deinstitutionalization of “status offenders.”  Reauthorizations of the Act have included additional core requirements, including removal of youth charged with delinquency from jails, “sight and sound” separation of adults and juveniles in other facilities, and a focus on disproportionate confinement of minority youth.

Perhaps most significantly, in 1966 the U.S. Supreme Court, in In Re Kent, began a period of activism in juvenile justice that significantly changed the landscape of how children and adolescents involved with the courts were treated.  In Kent, the Court held that juveniles being waived to adult court were entitled to hearing.  The following year, in 1967, the Supreme Court issued its most significant juvenile justice ruling in the case of in Re Gault.  In Gault, the Court noted that juveniles enjoyed none of the procedural safeguards that adults enjoyed and were often institutionalized for longer periods than adults and concluded that “juveniles suffer the worst of both worlds.”  This led the Court to extend a number of due process rights to juveniles.  Subsequent Supreme Court rulings extended additional rights to juveniles.

As a result of changing attitudes, action by Congress, and Supreme Court intervention, the face of juvenile justice was completely transformed.  Except in rare circumstances, we no longer allow juveniles to be institutionalized in adult facilities.  We have extended many (although not all) due process rights to juveniles. Status offenders are no longer held with adults and typically are not involuntarily institutionalized at all.  These are significant and important changes.  At the time these changes were taking place, few would have thought that the juvenile justice system could undergo such comprehensive and fundamental change.  As we think about improving the system today, it is important that we remember that with vision and commitment, we can continue to make major strides in improving the system designed to respond to youths accused of violating the law.      

 

State Level Changes

At the state level, during ACNJ’s lifetime New Jersey’s juvenile justice system has undergone two major reform initiatives and several less ambitious attempts to improve the delivery of services to court-involved youth.  The first major reform came in 1984.  In that year, voters approved a constitutional amendment that created a family court at the Superior Court level, merging several courts of lesser jurisdiction, including the Juvenile and Domestic Relations Court.  A completely rewritten Juvenile Code was also enacted.  That new Code, an outgrowth of a series of public hearings and several committees formed under the leadership of the State Assembly, was a blueprint for fundamental changes in how court-involved juveniles in New Jersey were handled.

The 1984 Code of Juvenile Justice and the concomitant creation of a family court were designed to achieve several policy goals.  The philosophical approach was to view juvenile misconduct in the context of the family.  The family court was intended to provide a single forum where all family law matters --matrimonial, child custody, and delinquency -- could be heard.  Juvenile-family crisis intervention units were mandated in each court vicinage to provide a family-focused, 24/7 response capacity to crises involving youth who, since 1974, had been designated as Juveniles In Need of Supervision (JINS), a classification that was abolished in the new Code. 

The 1984 Code authorized a whole new range of dispositional options, including counseling, substance abuse treatment, and other therapeutic interventions, to which family court judges could sentence juveniles who were adjudicated delinquent.   The Code required that the Division of Youth and Family Services (DYFS) submit to the court a “service plan” within 14 days (30 days, for good cause shown) for all youths placed under the Division’s care by the family court.  The Code also outlawed the commitment to a correctional facility of any juvenile determined to be developmentally disabled.

As the new Code and the new family court were taking effect, New Jersey Supreme Court Chief Justice Robert Wilentz assumed a leadership role.  He spurred the creation of a statewide Youth Services Commission that brought together the judiciary, the heads of all the state executive departments involved in serving youth, and county and local youth serving representatives.  Chief Justice Wilentz personally chaired monthly meetings of the Commission that focused on inter-systems coordination and implementation of the new Code and family court.  Also at this time, the Chief Justice, along with the Commissioner of Human Services and the New Jersey Attorney General, co-signed a letter that went out to all county executives encouraging them to create county youth services commissions to plan for and address the needs of at-risk and court-involved youth.  Ultimately, every county did so.

During the ensuing decade, a number of changes to New Jersey’s juvenile justice system were made.  The Department of Correction’s Division of Juvenile Services, which operated all the State’s secure juvenile correctional facilities, aggressively began to open residential group centers -- small treatment centers that were not physically secure -- throughout the state.  This was a major policy and practice change in that it resulted in the correctional system serving a population of juveniles who were previously served in other systems (arguably the largest segment of the population going into these Department of Corrections facilities would otherwise have been referred to DYFS).  Then, in 1993, this system of residential group centers was transferred from the Department of Corrections into a newly created Division of Juvenile Services in the Department of Human Services.  The Department of Corrections continued to operate the State’s secure juvenile facilities, the New Jersey Training School for Boys and the Juvenile Medium Security Facility.

The second large-scale reform of New Jersey’s juvenile justice system occurred in 1995.  Following a year of examination by a Governor’s Juvenile Justice Advisory Committee, a package of five bills that operationalized the main recommendations of the Committee was passed and signed into law on December 15, 1995.  Several significant changes to New Jersey’s juvenile justice system were made by these bills.  “Accountability” and “public safety” were added to “rehabilitation” in the Juvenile Code’s purpose clause.  The system was again restructured and a new Juvenile Justice Commission (JJC) was formed that brought together the residential group centers from the Department of Human Services, the secure facilities from the Department of Corrections, and the Bureau of Juvenile Justice from the Department of Law and Public Safety and the federal block grant programs that the Bureau administered.

Another significant component of the 1995 reform initiative was the creation of a $10 million State/Community Partnership Grant Program.  Counties whose youth services commissions met the membership requirements articulated in the legislation were eligible to receive Partnership Grant Program funds.  Youth services commissions were required to develop biennial plans for at-risk and court-involved youth and could use Partnership funds to support implementation of those plans.  This funding was provided the first real resources for many youth services commissions that had been created in the mid-1980s in response to the call from the Attorney General, Chief Justice, and Commissioner of Human Services. 

Another change in the 1995 initiative was the creation of post-incarcerative terms of community supervision that essentially allowed family court judges to include parole terms of up to one-third of the length of a commitment sentence for juveniles committed to the Juvenile Justice Commission, including those that “maxed out” of Commission facilities.  The Juvenile Code was also amended to authorize the family court to order parents who failed to exercise reasonable supervision over any child who committed a delinquent act to pay restitution.

Since the statutory changes of 1995, several less sweeping changes have been implemented to New Jersey’s juvenile justice system.  Following an escape in which a community resident was harmed, a secured perimeter was added to the New Jersey Training School for Boys in 1997.  Again in response to concerns from the surrounding community, the State also committed to reduce the population at that facility from approximately 500 to 300 youths.  The Juvenile Justice Commission also opened new secure facilities, including a new secure facility for girls and the Stabilization and Reintegration Program (commonly referred to as the “boot camp”), a 144 bed secure reception center and the Hayes Building.  Then, in 2000, the State Incentive Plan was created, a new competitive $5 million program to fund community-based alternatives to out-of-home placement with the Juvenile Justice Commission. 

As noted, these changes, at both the national and state levels, have significantly changed the landscape of juvenile justice in New Jersey.  That system is inarguably better suited to meet the needs of at-risk and court-involved youth than it was prior to implementation of these changes.  Yet, many of the structural, statutory and procedural changes that have been made to New Jersey’s juvenile justice system over the last few decades have been made to address problems that the system is still struggling to resolve.  The challenge of responding to these “old” problems, and to some new ones, is before us.  Some of the major policy issues that need to be resolved include:

·        Inter-System Coordination

There are no “juvenile justice kids” or “DYFS kids” or “mental health kids.”  There are children and adolescents who typically have multiple needs and are involved in multiple child-serving systems.  Several studies conducted on adolescents committed to New Jersey’s Juvenile Justice Commission illustrate this point.  In 2001, the Commission partnered with the New York Psychiatric Institute and Columbia University to assess all adolescents committed to the Commission during the first six months of that year using the Diagnostic Statistical Manual Diagnostic Interview Schedule for Children (DSM-DISC IV).  Nearly two-thirds of the youths (63%) had one or more diagnoses on the DSM-DISC IV.  Over one-third (34%) of the youths had more than one diagnoses.  Sixteen percent of the youths had three or more diagnoses.

Data from the Commission’s own intake assessment protocol provides additional evidence that youths in the juvenile justice system typically have a multiplicity of problems and are involved in other systems.  Commission intake assessment data indicate that over two-thirds (69%) of adolescents committed to the Commission’s care and custody have a drug and/or alcohol addiction.  Over one-half (51%) have been classified by a child study team and 42% have been expelled from school altogether.  Additionally, 42% of juveniles committed to the Juvenile Justice Commission were involved with DFYS at the time of commitment, or had previously been involved with DYFS.

Over the years, several things have been done to attempt to better address the multiple problems that juvenile justice system involved youth present and to better coordinate services between the juvenile justice system and other child-serving systems.  The State Youth Services Commission that was chaired by Chief Justice Wilentz provided a forum that brought the state departments most involved in serving youth (Human Services, Education, Labor, Health, Corrections, and the Attorney General’s Office) together with local representatives.  Coordination of disparate efforts was a goal that the Commission strove to achieve.  The 1995 codification of local youth services commissions was an attempt to extend this model for inter-system planning and coordination to the local level.

The 1992 transfer of residential group centers from the Department of Corrections to the Department of Human Services was explicitly done with the goal of coordinating the treatment provided in those centers with the services provided by the other Human Service divisions (principally DYFS and Mental Health and, to a lesser degree, Developmental Disabilities).  Another key goal of that transfer was to make the costs of providing treatment services in those residential group centers eligible for federal reimbursement under funding streams that excluded reimbursement of correctional costs.

When the Governor’s Juvenile Justice Advisory Committee, whose recommendations led to the creation of the Juvenile Justice Commission in 1995, met to make recommendations for improving the juvenile justice system, arguably the most vexing policy issue that the Committee confronted was whether to recommend a single juvenile justice agency that focused exclusively on coordinating the services being provided by multiple state departments to court-involved youth, or whether to recommend the creation of a single department of child and adolescent services to coordinate the services being provided to all youth, whether court-involved or not.  There was significant debate and discussion about this issue (more so than any other issue tackled by the Committee), and no clear consensus emerged. 

Ultimately, the concern that court-involved youth would be triaged to the bottom of the priority list in a single department of child and adolescent services led many to endorse the recommendation of a coordinated juvenile justice agency that could fight for its own funding and resources.  The enabling legislation for the Juvenile Justice Commission, that single state agency, did create an Executive Committee with the Attorney General and the Commissioners of Human Services, Education, Corrections, and Labor serving ex officio.  The intent was for this Executive Committee to serve as a forum for resolving inter-system policy issues, similar to the forum provided by the Youth Services Commission chaired by Chief Justice Wilentz. 

The Juvenile Justice Commission has been successful in the budget process, as evidenced by the fact that the State/Community Partnership Grant Program and State Incentive Programs have been funded at over $15 million annually.  Yet it could be argued that this success may have, in fact, exacerbated the problem of inter-system coordination with other child serving agencies, a concern expressed by many when the Commission was created.  If the Commission provides a viable placement option for children who, but for their delinquency, would be served by other agencies, those other agencies may be less inclined to serve those adolescents, whose behavioral problems make them among the most difficult to serve clients anyway.  The formation of the Commission was not intended to obviate the responsibility of other agencies to provide services to eligible youth.

The intersection between child protective services and juvenile justice poses one of the most vexing problems.  Abuse and neglect can often be a precipitating factor in an adolescent’s involvement in delinquency.  Family court judges are often openly vocal about being frustrated by their inability to get DYFS to provide services that they feel are appropriate for youngsters before them on delinquency charges.  Some county juvenile detention centers, which are often overcrowded, have had up to one-third of their residents in a holding pattern waiting for DYFS placements.  Youngsters have been sent to the New Jersey Training School pending DYFS placement only to “max-out,” or reach a point where they’ve been there so long that they can no longer be legally held.  Communication and collaboration between the two agencies can be so bad that Commission staff literally have to drop these youngsters, who have no families to return to, off at a DYFS district office.      

The relationship between the mental health and juvenile justice systems can also be problematic.  New Jersey does not have an adolescent forensic hospital.  The data from the Commission’s partnership with the New York Psychiatric Institute and Columbia University clearly outline the prevalence and incidence of mental health problems among the youth committed to the Commission, confirming that in New Jersey, like many other states, juvenile correctional facilities are increasingly being used to house adolescents with serious mental health problems.  Despite this fact, there are no collaborative efforts between the Commission and the Division of Mental Health to address these mental health needs.  Rather, the Commission has begun to create its own mental health treatment capacity by creating a special cottage at the New Jersey Training School for Boys with privatized clinical services and by expanding a residential treatment center dedicated to this population. 

Improving how we respond to the multiplicity of problems and needs that youngsters involved with the family court often have is an important challenge that New Jersey has clearly not mastered.  There are at least three alternative ways to address this issue.  First, the current response of increasing the specialized services available in the juvenile justice system can be expanded on.  If this tack is taken, clearly that system will need an infusion of resources in order to provide a level and quality of treatment services not typically found in a juvenile justice system.  Juvenile Justice Commission residential group centers would need a significant infusion of funds just to meet the licensing standards of DYFS residential treatment centers.  While this approach may be the most direct approach to getting services to court-involved youth, we risk involving youngsters in a correctional system who might be more appropriately handled in a more therapeutic environment.  There is also the loss of efficiency in creating parallel systems of care.

A second approach would be to create a system that fosters inter-system coordination and collaboration and that calls on each system to provide appropriate specialized services, where appropriate.  The Commission’s Executive Committee has proven ineffective as a forum where key child serving agencies can work to resolve inter-systems issues.  Originally chaired by the Attorney General and attended by cabinet members, the Executive Committee has devolved to the point where designees come to quickly vote on those matters the Commission’s enabling legislation requires the Executive Committee to approve. 

A starting point could be the collaborative relationship that the Juvenile Justice Commission and the Department of Health and Senior Services’ Division of Addiction Services currently have.  While the Commission does provide substance abuse treatment in its own facilities, the Division of Addiction Services also dedicates beds in its system of community-based licensed treatment providers for use by the Commission.  Despite the fact that there is a pressing need for more adolescent substance abuse treatment capacity, there is arguably a better relationship between Division of Addiction Services and the juvenile justice system than any other state child-serving agency. 

A third approach would be to create a single department of child and adolescent services that would include, and be responsible for, services to all youngsters, irrespective of court involvement.  Such a department could include child protective services, mental health services, juvenile justice services, and perhaps even services for developmentally disabled youngsters.  By bringing all services under one organizational roof, it is possible that we could improve upon all the problems created by our current system of “silo” services that don’t view youngsters in their totality.

This was the policy issue that the Governor’s Juvenile Justice Advisory Committee wrestled with in 1994 and 1995.  The current effort to improve the child welfare system provides an excellent opportunity to revisit the problem of inter-system coordination and to design a new systems approach that provides the best possible treatment services to all needy youngsters, irrespective of which door they first enter the system through.  To do this, there must be a conscious effort to include a discussion of services to court-involved youth in the policy debates and policy makers from the juvenile justice system must be at the table when decisions are made.  It is only logical that ACNJ, with its history of advocacy for children, including children in the juvenile justice system, advocates to ensure that these issues are tackled in the current restructuring process.

 

·        Detention

Detention is designed as a short term, secure placement for juveniles awaiting a court hearing who are deemed to be a danger to others or at risk of failing to appear in court as scheduled, if released.  The 1984 Code of Juvenile Justice contained a simple prohibition that remains in effect today: “No juvenile shall be placed in a detention facility which has reached its maximum population capacity” as designated then by the Department of Corrections and now by the Juvenile Justice Commission [N.J.S.A. 2A:4A-37(c)].  Despite this statutory prohibition, the simple fact remains that day in and day out, family court intake workers and judges place juveniles in overcrowded county detention facilities in violation of the law.  Some county detention centers have held four times their capacity, forcing four youngsters to be housed together in a cell designed for one.  In 2002, nine county detention centers had average populations that exceeded their rated capacities.  The placements are clearly illegal, but nothing is ever done about it. 

Why does this ongoing practice of violating the law go on?  One reason is that there is a complex separation of powers issue involved.  Family court judges will often argue that it is their responsibility to make decisions about whether a youngster before them requires placement in detention based on dangerousness or risk of flight.  It is the responsibility of the county executive, these same family court judges will argue, to provide adequate detention capacity for all juveniles that are determined to be in need of detention placement by the court.  But to county executives and freeholders who must dedicate tax revenue to pay for detention, this is an untenable situation.  Detention centers are costly to build and operate.  Many counties would need to undergo new construction to expand or replace their existing facilities in order to have enough beds to operate within the boundaries of the law. 

With competing demands for limited revenue, such as schools and roads, detention centers simply house more youngsters than they were designed for.  For the youngsters involved, however, the result can be devastating.  While placement in a detention center that is not crowded can be a life altering event, placement in crowded detention centers exposes children to elevated risks of violence and victimization.  Crowding limits the ability of administrators to provide adequate educational and therapeutic programming.  Crowded detention centers also expose staff to elevated risks of assault and injury and make working conditions significantly more stressful.

There are only two factors that influence detention center populations – the numbers of youths admitted and the length of time that admitted youths remain.  While both factors contribute to crowding, one important source of this continuing problem in New Jersey was highlighted by a legislative commission created in 1984 and charged with evaluating the impact of the new Juvenile Code and family court implemented that year.  That commission, the Juvenile Delinquency Disposition Commission, examined the records of juveniles admitted to county detention centers statewide in 1986.  The Commission made a case by case determination about whether youngsters in this sample would have been eligible for detention placement if national “model” detention admission criteria were applied, instead of New Jersey’s statutory detention admission criteria. 

The Commission applied criteria from the U.S. Justice Department’s Committee for Standards for the Administration of Juvenile Justice, from the National Council on Crime and Delinquency, from the Institute for Judicial Administration and the American Bar Association’s Joint Commission on Juvenile Justice Standards, and from the National Committee for Juvenile Justice and Delinquency Prevention. While all of the standards differed with respect to restrictiveness, they found that based solely on the dangerousness criterion, at best, only 74% of actual New Jersey admissions would have been eligible for detention using the least restrictive national criteria.

The Juvenile Delinquency Disposition Commission concluded that New Jersey’s statutory detention admission criteria were overly broad and vague, making nearly every court-involved youth eligible for detention placement.  The Commission recommended the adoption of specific and objective detention admission criteria in New Jersey as a way to limit detention placements to only those youngsters for whom such placement is clearly warranted.  Such criteria, for example, could require that risk of failure to appear in court be demonstrated by a willful failure to appear at a scheduled court hearing within the prior year, or by the issuance of a bench warrant for the juvenile within the prior year.  Likewise, specific admission criteria could require that danger to others be demonstrated by certain serious, violent charges. 

This recommendation of the Juvenile Delinquency Disposition Commission made in 1985 is as relevant today as it was then – New Jersey’s detention admission criteria remain overly broad and vague.  Legislation to modify New Jersey’s Juvenile Code to include specific and objective detention admission criteria should be implemented as part of a comprehensive approach to dealing with detention crowding. 

Another approach to limiting detention to only those cases where it is clearly warranted is to administratively apply an objective risk instrument to assess probability of flight or harm to others, if released.  Such instruments are typically empirically derived from a retrospective sample of actual cases and statistically identify those individual factors that are predictive of risk to flee or harm others, if released.  Administrative application of such an instrument, while it does not carry the force of law, should also be adopted as a way to assist decision makers to make appropriate detention placement decisions.

When the only option to detention is to release a juvenile on his or her own recognizance, or to the custody of his or her parents, judges may be forced to decide that, given the unique circumstances, placement in detention is the only viable option.  Other jurisdictions have successfully dealt with detention crowding by creating a range of detention alternatives ranging from electronically monitored home detention to programs where youngsters report for the day while they reside at home at night.  Some New Jersey counties have successfully implemented detention alternative programs.  Expansion of such programs should be encouraged as a component of a strategy to resolve the detention crowding problem in New Jersey.  It is critical, however, that when detention alternative programs are created, admission is limited to youngsters who, but for the detention alternative program, would have been detained.  Without such admission controls, detention alternative programs are often created and filled with youngsters who would otherwise have been released on their own recognizance, contributing nothing to a detention crowding solution.

The Annie E. Casey Foundation has successfully worked with policy makers and practitioners in a number of counties and states to implement the Foundation’s Juvenile Detention Alternatives Initiative.  This Initiative focuses on reducing lengths of stays in detention and on developing a range of alternatives to detention and the adoption of an objective risk instrument to structure decisions to place youngsters into those alternatives and into secure detention.  The Casey Foundation has recently accepted New Jersey’s application to be a four county site for the Foundation’s Initiative.  This is a very promising development that, to be successful, will require full buy-in from the key actors in the four counties, particularly the judiciary.  A previous Casey sponsored detention initiative in Camden County was not successful, at least in part because that buy-in wasn’t there.  Hopefully, we have learned from that experience.  This is an initiative that should be actively supported and closely watched for possible statewide expansion.

Crowding, unfortunately, is only one of the detention issues New Jersey faces.  New Jersey’s county detention centers run the gamut – we have some of the best detention programs in the country and we have some of the worst.  Some centers have excellent facilities, well trained and committed staffs, and provide comprehensive programming.  Other facilities are decrepit, have low paid, under-trained staff, and provide limited or no programming.  Little or no public attention is paid to these facilities, which have been termed the “dark closets of juvenile justice.” 

Responsibility for regulating these centers to ensure compliance with standards falls to both the Juvenile Justice Commission and the Department of Human Services, but the only real tool that either agency has to compel counties to improve conditions is to restrict admissions or close the facilities.  Either action could bring a county’s juvenile justice system crashing to a halt.  The recently created Office of the Child Advocate has statutory authority to ensure that youths who are detained are treated appropriately.  Exercise of such authority should be actively encouraged.  Further, advocacy to encourage counties at the bottom of the ladder to improve conditions should be actively pursued.  

 

·        Variation in Decision Making

A hallmark of juvenile justice is that key decision makers, particularly judges, are given wide latitude in decision making.  This is to facilitate individualized justice that allows for decisions to be informed by the unique circumstances of the alleged act, the youth, and his or her family and social situation.  Supporters of a separate system of justice for juveniles typically believe that such decision making latitude is critical to the success of a system truly designed to makes decisions in the juvenile’s best interests.  The reality, unfortunately, is that such unfettered discretion is a double-edged sword.  While it allows for individualized justice, it also allows for decisions to be influenced by the personal attitudes and values of the decision maker.  It also allows for adolescents with similar personal and family situations who have committed similar acts to be treated in very dissimilar ways.

In New Jersey decisions about how youngsters involved in the juvenile justice system will be treated vary, even dramatically, between decision makers.  Police vary in the extent to which “stationhouse adjustments” are made in lieu of formal arrests, detention practices vary between counties, prosecutors vary in their charging practices, and judges vary in their sentencing practices.  Perhaps most troubling of all, there are clearly dramatic disparities in the use of the juvenile justice system’s most severe option – commitment to a secure correctional facility.

The reality is that juveniles in some counties are at greater risk of commitment than juveniles in other counties, controlling for all legal and extra-legal factors that can legitimately influence a judge’s decision, such as severity of the delinquent act, past offenses, and prior placement history.  When the Juvenile Justice Commission was evaluating the feasibility of creating an alternative to commitment program, it collected extensive data using an objective risk and needs assessment instrument as a way to evaluate whether there was a group of committed adolescents who might be more appropriately served in community-based programs.  That data illustrate that some counties reserve commitments for adolescents that present high levels of risks and needs but that other counties commit adolescents with very low levels of risks and needs. 

This is New Jersey’s worst kept secret, yet it seldom talked about or even discussed as an issue.  Talking about such sentencing disparity makes people uncomfortable.  While individual judges will acknowledge the problem, publicly the judiciary will not.  This is a system built on individual discretion, after all.  Yet, it was the New Jersey Supreme Court that recently held that the plea practices of county prosecutors varied so dramatically as to contravene a goal of the Criminal Code – sentencing uniformity.  The Court directed the Attorney General to promulgate statewide standards.  While uniformity is not a goal of the Juvenile Code, it is ironic that the disparity the Supreme Court observed in prosecutorial plea practices pales in comparison to the disparity in family court sentencing practices in delinquency cases.

It is time to acknowledge this problem and begin a dialogue about how best to resolve it.  Child advocates are often concerned that simply raising the issue could lead down the path to structured decision making that would make it impossible for judges to base decisions on individual circumstances.  This is not an inevitable outcome.  Previous research by the Juvenile Delinquency Commission found significant variability between counties in the availability of programs and services that make the dispositional options authorized in the Juvenile Code real options for judges.  It means nothing to a judge who has a youngster before her that has stolen to support a drug habit that the Juvenile Code authorizes her to send that child to a residential drug treatment program if there is no program or no bed in an existing program to actually send the child to.  If this problem persists and is impacting probability of commitment, we should address it.

The current state of affairs, where decisions about children can be as strongly influenced by where a child is from as they can be by the child’s behavior and personal and family situation, is untenable, and should not be accepted, if only for the equal protection issues that it raises.  Given the recent significant increase in commitments at a time when juvenile crime generally, and violent juvenile crime specifically, are decreasing, it is even more imperative that we begin a public dialogue about this problem.

 

·        Disproportionate Minority Confinement

A related issue is that the fact that the overwhelming majority of adolescents ordered to the care and custody of the Juvenile Justice Commission are African-American or Latino.  In 2002, 67 percent of the adolescents admitted to the Commission were African-American and 18 percent were Latino.  These figures have not varied significantly for decades.  New Jersey’s failure to adequately address this problem led the U.S. Office of Juvenile Justice and Delinquency Prevention to declare the State out of compliance with the federal Juvenile Justice and Delinquency Prevention Act in the late 1990s and to withhold millions of dollars in federal block funds as a result.

The problem has been extensively studied.  The New Jersey Supreme Court Task Force on Minority Concerns’ Juvenile Justice Subcommittee began looking at the problem in the 1980s.  That Task Force commissioned a study by Dr. Carl Pope, one of the country’s pre-eminent scholars in this area to study New Jersey’s decision making.  That study found evidence that minorities received disparate treatment.  The Juvenile Delinquency Commission examined commitment decisions in 1988 and found that after controlling for prior record and personal and family problems, African-American youth adjudicated for first degree offenses were 2.9 times more likely than white youths to be committed.  Latino youth were 3.7 times more likely to be committed than white youths when adjudicated for a first degree offense.

The Commission found empirical evidence indicating that juveniles from single family households were more likely to be committed and concluded that this factor negatively impacted minority youth, who were more likely to come from single parent families.  This research also led to the Commission’s study of program and service availability.  That study revealed significant variability between counties, as mentioned.  It also found an inverse relationship between programs and services and need.  Large, urban counties with large numbers of court-involved youths had the fewest resources for judges to call upon when sentencing youths before them.  Since the greatest numbers of minority youth reside in large, urban counties, this resource disparity negatively impacts minority youth.

When the Governor’s Juvenile Justice Advisory Committee made sweeping recommendations for improving the juvenile justice system in 1995, several key recommendations that ultimately became law were included with the expectation that, if implemented, they would begin to ameliorate this serious problem.  Specifically, it was expected that by empowering youth services commissions with statutory responsibility for planning for at-risk and court-involved youth and by creating the State/Community Partnership Grant Program, funded at $10 million annually and divided between counties based on need, resource disparities would begin to disappear.   By creating a “level playing field” with respect to the programs and services available to family court judges, irrespective of what vicinage they were in, it was anticipated that disparities between counties in the handling of court-involved youth would diminish or even disappear.  This has clearly not happened.

The creation of the funding stream for alternatives to placement with the Juvenile Justice Commission, the State Incentive Plan, was also done with the expectation that such alternatives would reduce disproportionate minority commitment rates.  While it is still too early to tell if that program is having such an impact, the problem will clearly take a much more concerted effort on the part of both State and local officials.  Recently the Chief Justice called for a study of the problem and the judiciary, the Attorney General, and Executive Director of the Juvenile Justice Commission are working with local youth service commissions to examine this problem. 

This is a serious problem that has been studied extensively.  What is most needed is a concrete strategy for addressing this problem.  Certain steps can be taken immediately.  The Juvenile Justice Commission must approve county youth service plans before the county receives its share of the State/Community Partnership Grant Program funds.  The Commission can make inclusion of a strategy to reduce minority confinement a requirement and make plan approval contingent on a credible plan.  The Juvenile Justice and Delinquency Prevention Advisory Committee, a gubernatorially appointed group that oversees dissemination of the federal juvenile justice funding received by New Jersey, can also direct their funding to focus on strategies to address this problem.  The judiciary can also take a leadership role in this area and turn its study into a concrete action plan.

 

In summary, New Jersey’s juvenile justice system has some significant systemic issues and problems that will require a concerted effort on the part of many to resolve.  Many of these problems are longstanding and seem almost intractable to those who have been working to resolve them over many years.  Yet, despite the seeming intractability of some of these problems, New Jersey’s juvenile justice system has undergone a sea change during ACNJ’s twenty five years.  With continued focus and resolve, and the leadership and involvement of organizations such as ACNJ, continued evolution and major improvements to the system of providing services to court-involved children and adolescents are achievable. 

History tells us that major reform initiatives come about once every decade.  With the last major reform having occurred in 1995, it’s about time for another reform initiative.  The current focus on reforming child protective services provides an excellent opportunity to take a holistic view of child and adolescent services and begin to break down some of the artificial barriers between child-serving systems that impede the delivery of effective services for all deserving children.  I hope that we seize this opportunity and I look forward to continuing to work with you to make these changes possible.