Did you know that the Commonwealth of Virginia, like many states, allows for pretrial detention of juveniles with few meaningful limits based on the child’s age? Did you know that the Virginia Code provides almost no specific guidelines as to when pretrial detention is appropriate, and that even in Northern Virginia, juvenile judges detain children as young as 8 years old?
This occurs for a variety of reasons, including the lack of alternatives to detention, such as mental health and other residential facilities for children, as well as less-secure “shelter care”-type programs for children whose behavior is problematic, but does not warrant placement behind bars. What legislators and jurists fail to take into account is that using detention — which is in all relevant respects simply a jail for children — as a substitute for mental health treatment or behavior-appropriate interventions can cause irreparable harm to a child.
Recent studies confirm that detention can increase recidivism, exacerbate a child’s mental health condition, and increase the risk of self-harm. See B. Holman and J. Ziedenberg, Just. Pol’y Inst., The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities 4 (2006). With regard to recidivism, one state-commissioned study found in Wisconsin that 70 percent of youth held in secure detention returned to secure detention within a year of release. See id., citing D. Bezruki et. al., Legis. Audit Bureau, An Evaluation of Secure Juvenile Detention (1999). Researchers believe a major part of the increased recidivism rates is due to a process known as “peer deviancy training”; at-risk youth treated in a group setting tend to negatively affect one another’s “attitudes toward antisocial behavior, affiliation with antisocial peers, and identification with deviancy.” See Holman and Ziedenberg, supra at 5.
A report prepared by the U.S. Department of Justice stated that between the 1960’s and mid-1990’s, “significant research demonstrated that community-based programs (e.g., intensive supervision, group homes, day reporting centers, probation) were more effective than traditional correctional programs (e.g., training schools) in reducing recidivism and improving community adjustment.” J. Austin, et al., Office of Juvenile Justice and Delinquency Prevention Alternatives to the Secure Detention and Confinement of Juvenile Offenders, 3 (2005). The study further noted the following:
The time a youth spends in secure detention or confinement is not just time away from negative factors that may have influenced his or her behavior. Detaining or confining youth may also widen the gulf between the youth and positive influences such as family and school. Research on traditional confinement in large training schools (i.e., correctional units housing as many as 100 to 500 youth), where a large majority of confined youth are still held in the United States, has found high recidivism rates. As many as 50–70 percent of previously confined youth are rearrested within 1 or 2 years after release (Wiebush et al., 2005; Krisberg, 1997; Winner et al., 1997; Fagan, 1996). Some states have limited the size of these facilities, while others continue to operate 300- and 400-bed training schools. In either configuration, although the long-term nature of a youth’s sentence affords a greater opportunity to provide necessary treatment, educational, vocational, and medical services, confinement in these facilities represents a significant separation from the communities to which all youth will return and therefore creates a substantial obstacle in terms of community reentry upon release.
Id. at 2-3; see also Randall G. Shelden, Office of Juvenile Justice and Delinquency Prevention, Detention Diversion Advocacy: An Evaluation (1999) (finding that appropriately designed detention alternatives reduced rates of reoffense by 26%).
Of course, this research all supports alternatives to incarceration after a child is adjudicated delinquent (“found guilty” in juvenile law-speak) as well, but the Virginia Code does offer slightly greater protection in those circumstances, at least to very young children. The bottom line is that courts, including all stakeholders — judges, probation officers, intake officers, defense attorneys, prosecutors, and anyone else involved in the life-span of a juvenile case — must be aware of these risks and avoid detention at all costs. The General Assembly should also know how depleting its mental health and behavioral health system has impacted those least able to protect themselves, and that the effects often cannot be reversed. Moreover, those effects are felt by all children, but especially those from poor or middle-income families, who lack the means to pay for services that are only available from costly private providers.
For more information about the foregoing or for assistance with a juvenile delinquency matter, contact Bradley Haywood at (703) 691-8410 or bhaywood@sfhdefense.com.
