Association for Children of New Jersey

Policy Brief

April, 2005

www.acnj.org

www.kidlaw.org

Effective Utilization of Juvenile Detention

Requires Statutory Amendments

Overcrowding at juvenile detention centers is a persistent problem in New Jersey. The root of that problem lies, in large part, with the fact that juveniles continue to be locked up inappropriately.

Some juveniles are locked up for minor offenses because of a severe shortage of treatment alternatives for youth with mental health or family problems. These troubled kids are placed in crowded jails with violent offenders and their problems often get worse. Many of the youth involved with the Juvenile Justice Commission (JJC) have also been involved with the Division of Youth and Family Services (DYFS). Both agencies lack enough treatment programs for troubled youth, who have often suffered abuse and neglect.

Some juveniles are detained pre-adjudication, meaning before a judge determines whether the youth is guilty or innocent. The law permits youth awaiting adjudication to be detained only if they are a danger to the public or themselves, or when there is a good chance they will fail to appear at the next court hearing.

Several key reforms are underway in New Jersey to solve the overcrowding problem. Under a grant from the Annie E. Casey Foundation, the state has launched a pilot aimed at creating ways to better treat these young offenders, while also ensuring public safety. Called the Juvenile Detention Alternatives Initiative (JDAI), the pilot is unfolding in Atlantic, Camden, Essex, Hudson and Monmouth Counties.

The state’s child welfare reform plan envisions a system that assesses the needs of youth in all systems -- juvenile justice, child welfare and mental health. The Office of Behavioral Health (formerly the Partnership for Children) is working to find appropriate placements for youth in lockup who really need treatment, not punishment. A core goal is to reduce New Jersey’s reliance on institutional care for all youth.

These efforts are promising, but will take time to produce results. For reforms to be more immediate, systemic and lasting, changes to the rules for locking up minors must be incorporated into law. New Jersey’s juvenile code was written in 1984. The statute’s intent is to punish serious juvenile offenders, and treat, rather than punish, youth who need help and whose offenses are minor. The statute, however, is vague on certain issues, leaving it subject to interpretation and leading to the inappropriate detention of certain juveniles.

Overcrowded Juvenile Jails Long-Documented Problem

In February 1987, the statewide average daily population of juveniles in detention centers exceeded capacity for the first time. A Juvenile Delinquency Commission study of 1986 cases revealed that counties used different criteria for detaining juveniles. “In 13 counties, a disorderly or petty disorderly offense was the most serious charge in more than 20% of the detained cases.”[1]

Furthermore, 30 percent of the disposed cases in which a juvenile was detained resulted in all charges eventually being dismissed. In an additional 2 percent, the juvenile was diverted from formal court processing. In only 20 percent of all the cases were detained juveniles adjudicated delinquent and committed to state institutions as their disposition. That disposition occurred in less than 3 percent of the cases where the most serious charge was a 4^th degree disorderly or petty disorderly persons offense.[2]

The Juvenile Delinquency Commission compared provisions of the New Jersey Code to four sets of national standards.[3] The review showed that nearly one in every four juveniles detained statewide had committed a 4^th degree or less serious crime and would not have been detained under the national models, unless they had previously failed to appear in court.[4] The model standards specifically prohibited incarceration for 4^th degree offenses, disorderly persons offenses and petty disorderly persons offenses. The Commission’s report caused amendments to be made to the juvenile code which limited the instances of when a youth charged with a disorderly persons offense could be detained.

In 1995, ACNJ conducted a one-day survey of New Jersey’s juvenile detention centers to determine conditions for troubled youth.[5] The survey found that many of the detention centers were overcrowded – some double the approved capacity. Almost 30 percent of juveniles in detention were adjudicated and awaiting placement in another program. Some of these juveniles waited up to six months before DYFS found a treatment alternative. The lack of appropriate treatment programs was cited most often as the reason for delay.

While some progress has been made, overcrowding continues today. According to a report issued by the Office of the Child Advocate in November 2004,[6] five counties reported average daily populations for 2003 that exceeded capacity. This same report also documented the prevalence of serious mental health disorders among the youth in detention.

What is the Solution?

There is no one answer. A multi-tiered approached is needed to solve the overcrowding problems and to institutionalize those solutions. As mentioned, two promising reforms are underway, but will take time to produce results.

To build upon the reform efforts and systemically minimize the inappropriate incarceration of juveniles, legislative changes are needed to clarify the statutory criteria for detention admission and can complement the other reforms already underway.

This approach has worked elsewhere. Data from Florida, for example, supports the finding that a restriction on admission criteria can work to lessen the population of detention facilities. After Florida enacted the Juvenile Justice Reform Act of 1990, which established new criteria prohibiting certain uses of detention for juveniles, detentions populations immediately decreased. Further, a 10-year longitudinal study found that subsequent amendments to the statute allowing more detainable offenses significantly increased the number of youths admitted to regional detention centers.[7]

In New Jersey, however, we continue to imprison youth who are charged with minor crimes.

Risk of Flight

A common reason for detention of juveniles with minor offenses is that they failed to show up for a previous hearing or they ran away from a treatment program. The law requires a demonstrable record of a juvenile’s recent willful failure to appear at juvenile court proceedings or to remain where the court or court intake placed the

juvenile. But it fails to define recent.

A good first step would be to clarify the term “recent” to mean within the past 12 months. The youth should not be “punished” for behavior that occurred long ago in the context of her life, especially while awaiting adjudication of alleged criminal activity. Punishing a juvenile with detention for failure to appear at a court appearance more than 12 months prior is unwarranted punishment.

It is also possible to argue that routinely locking up non-violent young offenders for a previous failure to appear runs contrary to the normal behavior of teenagers. Experts in the field of childhood and adolescent behavior[8] write about the differences in brain activity between adolescents and adults. The region of the brain that controls impulses, foresees consequences and tempers emotion are physiologically underdeveloped in adolescents, even at the age of 16 or 17, making them prone to bad judgment. Teenagers underestimate risks and overvalue short-term benefits. They are more susceptible to stress, more emotionally volatile and less capable of controlling their emotions than adults.[9]

The research also shows that a person’s brain does not become fully matured until their early 20s, at which time, they as an adult, should be held accountable for their actions. The impulsive decision not to appear in court should not automatically land a juvenile in jail, especially if the underlying charge is the equivalent to a disorderly persons offense.

Juveniles charged with acts that are the equivalent of disorderly persons offenses should not be detained pre-hearing, except in the most extreme cases. To do otherwise defeats the meaning of the statute and the purpose of the juvenile code.

The stated purpose of the Juvenile Code, as amended in 1988 and 1991 reads as follows:

a) To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of juveniles coming within the provisions of this act;

b) Consistent with the protection of the public interest, to remove from children committing delinquent acts certain statutory consequences of criminal behavior, and to substitute thereof an adequate program of supervision, care and rehabilitation, an a range of sanctions designed to promote accountability and protect the public;

c) to separate juveniles from the family environment only when necessary for their health, safety or welfare or in the interests of public safety;

d) to secure for each child coming under the jurisdiction of the court such care, guidance and control, preferably in his own home, as will conduce to the child’s welfare and the best interests of the State; and where such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given by his parents;

e) to insure that children under the jurisdiction of the court are wards of the State, subject to the discipline and entitled to the protection of the State, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them; and

f) consistent with the protection of the public interest, to insure that any services and sanctions for juveniles provide balanced attention to the protection of the community, the imposition of accountability for offenses committee, fostering interaction and dialogue between the offender, victim and community and the development of competencies to enable children to become responsible and productive members of the community. NJSA 2A:4A-21

A juvenile charged with a 4^th degree offense is highly unlikely to seriously threaten the “physical safety of persons or property of the community.”  It makes little sense to send juveniles who do not belong in jail to secure detention. The statute should prohibit incarceration of juveniles when the most serious charge is a 4^th degree offense.

In 2004, the Appellate Division of the Superior Court of New Jersey held that a juvenile who comes before the court on a family crisis petition as a runaway may not be adjudicated delinquent for violating a court order (a 4th degree offense) to obey the rules of home and school. No crime had been committed. The court found that this adjudication is in contravention to the meaning of the statute.[10] Such juveniles should not be institutionalized with delinquents, many of whom have committed acts of violence and brutality.[11]

To address concerns that a child with serious mental health issues who is charged with a 4^th degree offense may need immediate treatment and/or a parent cannot be located, the code can be amended to direct the Office of Behavioral Health to assume care and custody of juveniles with mental health issues and DYFS to provide foster care for juveniles when a parent or guardian cannot be located.

Reforming the statute as outlined above will help ensure that a juvenile will not be inappropriately detained. Simultaneously, these changes will further encourage ongoing efforts by state and county entities to develop an array of appropriate alternatives to incarceration for judges to use for juveniles who do not belong in jail, but need state intervention to protect their health and safety. Together, with the help of the JDAI Initiative, the juvenile justice system will be well on its way to serving the children of New Jersey in a more appropriate manner.