Culture Shock: The Problem of Juvenile Justice

By Jessica PishkoJune 2, 2014

Burning Down the House by Nell Bernstein

WHEN the Center for Investigative Reporting recently visited the Santa Cruz County Juvenile Hall — widely considered one of the best juvenile detention centers in the country — they found remarkably prison-like conditions, ranging from the bare, concrete walls to the use of solitary confinement as a method of disciplining youth. There are currently no federal or state laws that regulate the use of solitary confinement for juvenile offenders, despite overwhelming evidence of its harmful effects. But the abuses don’t stop there. A 2012 report by the Bureau of Justice Statistics, a division of the Department of Justice, determined that youth held in adult prison facilities suffered less instances of sexual violence than their peers in juvenile facilities. And in some facilities, the rate of juvenile recidivism is over 80 percent, meaning that the bulk of these young people will eventually add to the burgeoning prison population.

There seems to be a consensus that the prison system as a whole isn’t working, and this is particularly true when it comes to juvenile detention. The United States incarcerates more young people under the age of 18 than any other industrialized country in the world. (By comparison, South Africa, our closest competitor, incarcerates its youth at one-fifth the rate of the United States.) Most juveniles who are sent to these facilities are from racial minorities. Many of them suffer abuses in prison that are heinous for adults and potentially ruinous for youth — solitary confinement, rape, repeated physical abuse, deprivation of sunlight, insufficient food and affection. Perhaps worst of all, children leave these facilities with additional traumas under their belts and no promise that their outside lives will improve.

And yet, despite protestations from all political parties that our society values children, despite the proliferation of New York Times bestsellers on how to raise children, despite growing scientific evidence that the confinement of adolescents may profoundly stunt their brain development, despite the fact that juvenile crime is steadily declining, change has not followed. Why?

In her new book, Burning Down the House: The End of Juvenile Prison, Nell Bernstein, a journalist whose previous book addresses the problems of children of the incarcerated, attempts to explore this elusive question using a mix of reporting, research, and anecdotal history. Bernstein’s basic premise, which I agree with, is that it’s mostly a matter of culture, an elusive but necessary concept. She argues that young adults and children require positive relationships with adults in order to rehabilitate, but prison, which isolates and punishes violators for transgressions, is based on just the opposite assumption. Prisons assume that those who commit crimes must be isolated from the community, both to force them to think about their immoral acts and to protect the rest of the law-abiding community. This is the direct opposite of what we should be doing for children in prison: educating them, providing them life skills and positive role models, and supporting their mental and physical development in a positive way. We have a culture of punishment, and culture is difficult to change.

The juvenile prison has a mixed history. The first juvenile detention centers were built with the premise that out-of-control kids were better off removed from their families and placed in the care of the state. Most of the children were those of immigrants and the poor, and expectations were low. As Bernstein writes, wards of the state have always been “other people’s children,” of whom little is expected. Despite various reforms throughout the years, there has always been a tension between the idea of state control of unruly children and the more humane notion of rehabilitation.

Hence, we reach the essential conundrum of juvenile incarceration. Juvenile prison was never really intended to be a prison, and even today it serves as a sort of catchall for children who come from families with histories of abuse and neglect. Even though adolescents aren’t treated like adults under the law, juvenile prisons have come to look like their adult counterparts, with all of the same dangers. And, like adult prisons, they continue to become more crowded and violent. 

Legally, children don’t have the same rights as adults do. They can’t drink or smoke, and they can’t skip school — all crimes for which youth can be arrested. Originally, children’s law was based on an English common law notion of parens patriae, or “the state as parent.” Under parens patriae, judges had broad discretion to determine what was in the best interests of the child, and it remains the basis of today’s laws regarding juveniles. For example, unlike adults, juveniles can be removed from their homes and relegated to a facility without their permission and against the wishes of their parents, if a court so orders. And some constitutional protections in criminal prosecutions, like trial by jury, are not guaranteed for juveniles. In the last 50 years, the Supreme Court has clarified and extended the protections accorded to youth. In re Gault, for example, ensured that juvenile defendants have the right to counsel, and in Kent v. United States, the court ruled that, while juvenile courts have wide latitude, they must accord youth defendants certain procedural protections.

There’s some reason to think that this trend of protecting juvenile offenders will continue. As scientists are better able to measure brain activity and structure, they are discovering increasingly persuasive evidence that children do not make decisions the same way adults do, and that the brain continues to develop throughout the teenage years. Much of this data is trickling down to the judicial level. In 2005, swayed by scientific evidence that the adolescent brain is different from the adult brain, the Supreme Court held that juveniles were not eligible for the death penalty (Roper v. Simmons). Using similar logic, the court held in the 2012 case Miller v. Alabama that juveniles could not receive life sentences even for violent crimes. (The court had already ruled previously that juveniles could not be sentenced to life for nonviolent crimes.)

While the law has always acknowledged that children are different from adults, this may not always be to children’s benefit. For example, in New York and other jurisdictions, parents can consign their children to state care by filing a PINS (“person in need of supervision”) petition. Basically, the parents are acknowledging that their child is so out of control that they need the state to intervene. In many cases, PINS petitions are filed when there are cases of extreme truancy or curfew violations. Parents are legally liable for sending their kids to school, so some parents may file a PINS petition to absolve themselves of this responsibility. In my experience, while those youth are certainly experiencing turmoil from multiple sources, they are deeply, emotionally affected when they realize that the end result of a successful PINS petition means that they will wait in a room for a bus to take them away from their home to live with strangers. No matter how much they protest otherwise, youth — teenagers, especially — need the security that a family provides. 

Any discussion of juvenile detention, including Bernstein’s, leads back to the decisive factor of race. Most teens commit illegal acts at one time or another. But most teens don’t go to prison. Most don’t even get arrested. And the ones who do are predominantly black or Latino. (They are also mostly male, although Bernstein does a fair job of including the experiences of female adolescents.) Black adolescents are sent to juvenile detention at five times the rate of white youth. In many urban areas, juvenile detention is a rite of passage. Bernstein urges her readers to view youthful rule-breaking as an expected part of development, and one for which many adolescents cannot be blamed. 

Truth be told, some of Bernstein’s book is familiar territory, although it’s still an excellent piece of advocacy. Many of the statistics and troubling stories from juvenile prisons won’t surprise anyone familiar with the field. For example, the common occurrence of rape and violence in juvenile prisons has been well covered for a few years now. A federal report a few years ago found that one in 10 juvenile offenders had been sexually assaulted by a staff member. A 2010 study found that as many as 30 percent of youth in juvenile facilities had been sexually abused. 

While Bernstein inserts stories of youths she interviews, some of her anecdotal evidence is less compelling than, for example, the stories told in Cris Beam’s To the End of June, which gives a more comprehensive analysis of the entire foster care/juvenile detention cycle. Many of Bernstein’s interviews are from her time working at a youth newspaper, and the stories have that sense — people drift in and out of the reader’s periphery without the attention needed to do justice to the full power of their stories. The true problem of juvenile incarceration has roots in the legal system, the foster care system, the welfare system, homelessness, poverty, racial inequality, and inadequate health care — it is necessary to give a more complete view of the problem than Bernstein manages. At the end, she asks one of her interview subjects what would have made a difference in his life. He answers, “My parents staying together. They could have fucking raised me.” This quote strikes to the core of Bernstein’s main point: families should be given access to counseling and education, rather than having their children removed from their care by a government authority. But, even so, a more careful examination of the circumstances and the parents is required, and a fuller picture of the complexity of providing services to these families. Should an adolescent’s wish always be honored? This is a more complex question than Bernstein’s quick anecdotes can answer.

As Bernstein points out, some states have made progress by enacting sweeping reforms and closing abusive facilities — namely California, Texas, and New York. But despite reforms, juvenile detention remains relatively the same throughout the country, and isolation and corrective punishment remain common. The Missouri Model is widely acknowledged as the best youth rehabilitation program in the country. Under the Missouri Model, juveniles work with invested staff and participate in programs focused on treatment. They are housed in less “prison-like” quarters. And the Missouri Model produces measurably better outcomes — just a quarter of youth housed under the Missouri Model recidivate, an impressive feat.

Despite this promising approach, Bernstein isn’t quite satisfied. Even under the Missouri Model isolation is used as a tool, and youth are still separated from their families. Ultimately, she argues juvenile prison should not exist. Most juvenile inmates enter the system for nonviolent crimes and are statistically more likely to leave juvenile detention worse off. While she is willing to admit that particularly violent youth do need some sort of rehabilitative setting, she strongly believes that the current system — the reams of barbed wire, the locked cells, the punitive attitude of the workers — only exacerbates any preexisting problems. Plus, how can youth learn to trust any system that permits so much abuse and rule-breaking?

Whether states can manage to coordinate widespread use of the Missouri Model along with a different approach to youth and families — a change in culture, in other words — remains to be seen. But, given the entrenchment of prison culture in America, this seems unlikely to happen quickly enough to prevent substantial harm to thousands of adolescents. And there’s the further problem of what those youth face when they return to society. As one of the teens in Santa Cruz County Juvenile Hall says, “I kind of feel safe here” — the isolation and violence on the inside may be preferable to what’s outside.


Jessica Pishko represented death penalty clients and victims of domestic abuse pro bono.

LARB Contributor

Jessica Pishko graduated with a JD from Harvard Law School and received an MFA from Columbia University. She writes frequently on incarceration and the justice system.


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