Inequality for Youth: Why Do Foster Youth & Juvenile Offenders Receive Different Treatment?

I. Introduction: How Does Society Want To Treat Its Children?

            There is a shared belief in society that children should grow up in environments that are conducive to living healthy and productive lives. There are certain things that we believe that all children need and deserve. Those beliefs are even enshrined in the Convention on the Rights of the Child, which sets out the rights that must be realized for children to develop their full potential: to be free from hunger and want, neglect and abuse. When these things might be lacking, society has in place mechanisms to try and remedy those deficiencies. Judge Leonard P. Edwards, in an article for the National Council of Juvenile and Family Court Judges, wrote that “[w]hen the family fails or is unable to rear its child within acceptable norms, society has an interest in intervening to achieve its own goals.” Children are our future and it is the shared goal of a society to raise them as best we can. However, there are times when circumstances compel the state to act in the best interest of the child.

            It is because of that fact that society has procedures and systems to protect and nurture children to the best of our ability. Some youth are removed from their unsafe homes and placed into foster care and some youth commit offenses and are then incarcerated. In my last post, I wrote about how children in the juvenile justice system face similar traumas as children in the foster care system might experience and are often even the very same children, yet the treatment they receive is vastly different. The question is why? What is different about the youth that would necessitate a difference in treatment? These youth are often the same and they have all experienced similar trauma. Yet, because of a few different circumstances surrounding the trauma these youth might be experiencing (being removed from their homes and placed in foster care vs. being removed from their homes and being incarcerated) they receive different support.

            Society also collectively believes that children under a certain age lack a “level of maturity, thought process, decision-making, and experience” compared to individuals above the age of majority. We therefore generally distinguish between children and adults with regard to criminal culpability “We punish [criminal acts] because we believe such harm is morally deserved by a particular individual for a particular act.”  However, is that what we want for our children? We recognize that children should be treated differently than adults and that rehabilitative measures would be better for them and society, yet the reality is considerably different. In Miller v. Alabama (2012), a 14-year-old committed murder and was sentenced to life in prison without the possibility of parole. The Supreme Court held that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment, writing “that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform…they are less deserving of the most severe punishments.”

There is certainly a different societal view on the two populations, foster youth and juvenile justice youth, but they are all still children and youth that are deserving of all that we believe children deserve. Both systems can be traumatizing, but we tend to think one set of youth deserve what they are getting because they have committed some criminal/delinquent act. This is especially true for children and youth that commit particularly heinous or violent crimes because instinctively, we believe they should be punished.  This idea is given credence in Chief Justice Roberts’s Miller  dissent, where he wrote “society may determine that [protecting the innocent from violence] requires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency.” Yet the fact that these children and youth still are treated differently despite experiencing similar trauma is unjust. These children all deserve similar support when they experience difficult circumstances.

            In this post I will go through a brief overview of the criminal justice system and juvenile justice system as well as the theories underlying them. Then I will discuss issues with the juvenile justice system and its implementation and some of the realities of juvenile justice. I will also discuss some reforms to the issues addressed. Finally, I will discuss possible policy suggestions and further plans of action.

II. The Criminal Justice System and The Juvenile Justice System

          Criminal law is traditionally focused on retributive justice. While difficult to discern an exact definition, it is best understood as a form of justice committed to three principles: (1) that those who commit certain kinds of wrongful acts morally deserve to suffer a proportionate punishment; (2) that it is intrinsically morally good if some legitimate punisher gives them the punishment they deserve; and (3) that it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers. Society tends to treat criminals more harshly because we believe there is moral value in punishing individuals for committing crime. Criminal penalties are meant to deter others from committing crime, protect the public, rehabilitate the offender, or simply punish an individual for wrongdoing. Justice Antonin Scalia put it best during oral arguments in Miller v. Alabama when he exclaimed, “I thought that modern penology has abandoned that rehabilitation thing, and they — they no longer call prisons reformatories or — or whatever, and punishment is the — is the criterion now. Deserved punishment for crime.”

            However, the juvenile justice system, according to, “operates according to the premise that youth are fundamentally different from adults, both in terms of level of responsibility and potential for rehabilitation. The primary goals of the juvenile justice system, in addition to maintaining public safety, are rehabilitation, addressing treatment needs, and successful reintegration of youth into the community.” In the early 19th century, special courts and facilities for juveniles were established as part of the Progressive Era reforms with the aim of “enhancing optimal child development.” The first juvenile courts in the United States operated under the philosophy of parens patriae. “This philosophy meant the state could act ‘as a parent,’ and gave juvenile courts the power to intervene whenever court officials felt intervention was in the best interests of the child. Any offense committed was secondary to the offender.” It is also important to note that these children become wards of the court where the state then becomes involved in their care and wellbeing. The basic understanding of juvenile justice is that its purpose is to serve the best interests of the child and it is generally rehabilitative in nature, rather than punitive like the adult criminal justice system.

            In Eddings v. Oklahoma (1982), a 16 year-old who experienced a turbulent family upbringing and was emotionally disturbed committed murder and was sentenced to death. The Supreme Court vacated his death sentence and held that, “[A]dolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults. Moreover, youth crime as such is not exclusively the offender’s fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America’s youth.” Since then, there has been a generally recognized understanding that youth are not as culpable for their crimes when compared to an adult. This has also continued recently with the Supreme Court taking on cases involving the death penalty and juveniles (Roper v. Simmons (2005), Graham v. Florida (2010), andMiller v. Alabama (2012)).

            For adults, criminal culpability is not as much of an issue since we presume adults understand the consequences of their actions in a way children do not. For children and youth offenders, while there need to be consequences for criminal behavior, there should also be an appropriate balance between public safety and helping youth offenders address the circumstances that contributed to their offenses. Yet the question remains, is the juvenile justice system accomplishing its goal or is it simply a version of the adult criminal justice system?

III. Issues with the Juvenile Justice System

It is well understood that children are not as capable of understanding the consequences of their actions compared to adults. According to a study conducted by the National Institutes of Health, “[t]heir minds are not as developed, and they are more susceptible to interference and less able to inhibit inappropriate responses than are adults.” The juvenile justice system operates on the assumption that, because youths lack the ability to control their actions, justice would be better served attempting to rehabilitate the youth, rather than making them defendants in a criminal trial.

            However, the basic idea that children are developmentally incapable of understanding the consequences of their actions is often lost when a child enters our criminal justice system. Society treats these youths differently because there is a presumption that youth offenders have made a conscious decision to commit crime and foster youth are simply victims of their circumstances. This idea is reinforced by individuals who believe advocates for criminal justice reform are solely trying to help youth escape culpability or accountability for their actions. In Roper v. Simmons (2005), Justice Scalia wrote in his dissent, “The argument that ‘[r]etribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished,’ is simply an extension of the earlier, false generalization that youth always defeats culpability.” He was criticizing the majority for what he believed their argument meant, that being a youth who commits a crime somehow contributes to less culpability or punishment. In addition, the current administration recently indicated a return to a tougher stance on juvenile crime shifting the focus from rehabilitative services and prevention/intervention programs to enhancing public safety and strict accountability.

It is also important to understand that juvenile offenders are not just small criminals. They are children. Children are different because their brains are different and we as a society should be doing more to help them. We do not assume that youth in foster care are to blame for what happened to them, but presume juvenile offenders are to blame for circumstances that might be beyond their control. However, in discussing this we should look at the types of crimes youth are committing. There are certain offenses that are only against the law because the offenders are children, such as curfew, truancy, and disobedience. However, more serious crimes that would be crimes regardless of the age of the offender are of greater concern to most people. In 2017, the most recent year with fully available data, there were an estimated 809,700 arrests of minors. Of those arrests, 48,470 were for what were defined as violent crimes, about 17%. The rest range from disorderly conduct to drug abuse and vandalism. This is important to know because many of these youths are still facing similar punishments and not getting adequate rehabilitative services and support. The fact is that there is a downward trend in youth crime and arrests, yet in many parts of the United States there is no cognizable difference between the adult and juvenile justice system and that is a problem.

Foster youth are generally supported with services that seek to help them overcome the difficulties they encounter in their lives. These children have gone through terrible things that displace them from their families and often leave them with trauma. The same can be said of juvenile offenders who experience similar if not the same trauma in their daily lives and are later incarcerated.

As referenced earlier, the juvenile justice system developed with the intention of rehabilitating and treating child offenders, rather than focusing on the punishment of the youth offenders. “The overarching goal of this ‘treatment approach’ is to act in the ‘best interests’ of the child.” However, in practice there exists a tension between focusing on the best interests of the child versus focusing on punishment and protecting society from crime. The aspiration of the juvenile justice system remains a dream deferred since too often they are being treated like smaller adult offenders.

            The reality is much different from the stated goal and that failure is a disservice to our youth. Beginning in the 1980s, states began reforming their juvenile justice systems by stressing “punitiveness, accountability, and a concern for public safety, rejecting traditional concerns for diversion and rehabilitation.” This has primarily effected minority youth, but the impact can be felt across the United States. Youth involved in the system are more likely to be re-arrested if they are released and mental health services are lacking. They also suffer poorer educational outcomes and “[i]ncarceration also causes severe and long-term problems with future employment, leaving ex-offenders with few economic alternatives to crime.” There is also the additional damage of labeling youth as delinquents that itself can increase the probability of further interactions with the juvenile justice system and adult criminal justice system.

            When juveniles are removed from their homes and placed in correctional facilities, the trauma from it has deleterious effects. Doing so disrupts the healthy psychological development of youth by disconnecting them from their parents or parental figures, from peers who model and value academic success and positive social behavior, and from participation in activities that require critical thinking and independent decision-making. Additionally, there is a logistical hurdle in trying to reform the system because of the differences between the different juvenile justice systems among the states and the amount of (or lack of) information collected about incarcerated juveniles. However, based on the available data, the goal of rehabilitation for those in the juvenile justice system is not being achieved. These youths are being deprived of a meaningful opportunity to rehabilitate and reenter society. This is a problem since society has an interest in intervening in precarious situations when children have made choices that place them in the juvenile justice system and when they are being neglected or abused and placed in foster care.

The question then becomes, are there good reasons for treating traumatized youth who respond to that trauma in terms of criminal or delinquent behavior differently from youth in the foster care system? Why not treat juvenile offenders more like foster youth? I am not saying that the foster care system is perfect; there are more than enough stories highlighting where it has gone wrong. However, the aim of supporting children in times of crisis is something worth working towards.

IV. What Has Been Done?

            Recently, there has been a shift from the punitive approach in juvenile justice to community-based programs that seek to provide a continuum of care for youth in the juvenile justice system. This movement departs from the view that youth need to be strictly punished and moves towards a model that emphasizes rehabilitation. The Urban Institute has even offered a guide for interested jurisdictions that will show them how to “repurpose juvenile facilities… [and] ‘capture and redirect’ savings from reduced reliance on incarceration, while maximizing state and federal funding streams to create a ‘continuum of care’ for youth and families in their own communities.”

            There have been successful initiatives implemented across various jurisdictions that could be a model. These intervention programs, intended to reduce recidivism, could motivate critical changes in youth’s behavior by tapping their own specific aspirations for their further education and productive future lives. The same report from the Urban Institute states that, “Building a true continuum of care and opportunity for youth and families in their home communities to both prevent and address the root causes of illegal behavior requires substantial investment, particularly given that communities disproportionately impacted by youth incarceration often also experience concentrated disadvantage that creates structural barriers to youths’ success.” Yes, funding these programs might be costly, but we already spend a lot on punitive approaches with little to show for it. Money saved from not incarcerating children could be used to fund other social programs that would provide better outcomes for the youths and society. The ACLU estimates that while the average cost of a juvenile prison bed is $241 a day, a slot in a community-based program costs less than $75 a day. According to the Youth First Initiative, “If youth prisons were closed, tens of millions of dollars could be freed up for community-based, non-residential alternatives to youth incarceration, and other youth-serving programs.” In addition, many of those programs incorporate restorative justice principles so that young people have the opportunity to repair harm to victims and give back to their communities. This also helps achieve the stated goal of the juvenile justice system to rehabilitate the youth while also recognizes that some youth did do something wrong.

V. Conclusion: Where Do We Go From Here?

            In my first post I talked about the similarities that foster youth and youth in the juvenile justice system face with regard to trauma and adverse childhood events. In this post I have highlighted some of the inequity in treatment of children and youth in the juvenile justice system compared to the children and youth in foster care. The reason this is a problem is fundamentally because kids are kids. Children and youth that have their lives intersect with the juvenile justice system are still children even if they have made some bad choices in their lives. There are fundamental issues with the juvenile justice system that merit concern and that need to be addressed. While there has been some progress in recent years, more work remains. Society wants what is best for all children. “One of the principal tasks of a democratic society is to nurture its children to a successful, productive adult life.” While it is true that sometimes that does not happen, as a society we have taken steps to work to ensure that we help children whenever possible. We take active steps to support children, foster youth, when it has been decided that circumstances outside of their control are having a detrimental effect on their lives. As a society we want to help kids succeed and we should want to, but this objective is not extended to youth in the juvenile justice system.

In my next post, I will talk about other alternative solutions and potential avenues of advocacy to address this issue. I will argue that youth in the juvenile justice system would benefit from receiving similar support that foster youth receive since they experience similar trauma.