Mental Health in the Juvenile Justice System

W. E. B. Du Bois once asked what it felt like to be a problem.1 Certain people have problems. Others are consigned to being them. Our sense of self depends on having horizons of hope, promises of potential we can believe in, rather than being defined by our brokenness. Problems mark the lives of all of us. The question before the criminal legal system is whether it treats people as having problems or being them.

People end up encountering that system either because it has a problem in wrongly going after them or because they have problems affecting their lives. Until quite recently, the system was tasked with resolving people society deemed to be problems, and in large measure, that remains the case. That characterization is reflected in everything from language to procedures to institutions. Using substances means one is an “addict.” Having done certain things makes one a “danger to society.” Court procedures are in large part about sifting out whether or not someone is in fact these things. Should that determination be made the person so rechristened goes to a place designed for problems, a concrete facility somewhere with barbed wire, armed guards in towers, and padded isolation cells.

Rehabilitation in such places is not entirely absent, but it is a distinctly secondary consideration. It is tolerated because its advocates have convinced authorities that it is in fact a way of dealing more effectively with problems than simply confining them. And it is tolerated only insofar as it is compatible with continuing to deem the person to be the problem. The Supreme Court of the United States recently had to tell a prison to let a chaplain touch a convict undergoing lethal injection because the system was inclined to think that small gesture too decent.2 Even this far into a social crusade that has crushed multinational pharmaceutical companies and resulted in hundreds of millions of dollars for treatment, first-class opioid-use rehabilitation is available in only a small minority of prisons.3 Family visitation helps manage problems—but letting mothers and fathers hug their sons and daughters is too humanizing. Decades ago, officials even used to allow conjugal visits.4 Now, video “visitation” is deemed more in keeping with the effective management of people as problems.5

This mindset is not merely the one required for running prisons and other tightly controlled facilities in a technologically advanced and dangerous world. Even after one graduates from whatever rehabilitation even the most generous facilities offer, he or she remains a “felon,” a status virtually as permanent as the color of one’s eyes. And one far costlier to one’s ability to earn a living by flipping hamburgers, cutting hair, or receiving an education through student loans—rather than heading right back into problems.6

Adults who commit crimes are thought of as problems and mostly treated in a way that makes the number and severity of their problems grow.

We tell ourselves we treat kids and teenagers differently. The entire reason we have a separate juvenile criminal system is society’s discomfort with writing off people until the morning of their eighteenth birthday. Most of us want to believe they can still change. (Most of us, anyway. There are some who still believe devoutly in the existence of the “superpredator” or today’s opioid equivalent of the “crack baby,” people condemned to be problems by their very conception.7)

Perhaps, too, it’s because most of us remember having problems when we were kids and teenagers yet having escaped the temptation of thinking of ourselves as being problems.

Or maybe it’s because we know kids and teenagers—sometimes even our own children, or nieces and nephews, or grandkids—with problems we can more readily understand than those of the grownups living on the wrong side of town.

It could even be the case that most of us would like a juvenile justice system as a fallback for the things our families and communities simply work out for our own kids and teenagers. There’s no small number of people out there who cannot imagine calling the police on young people they know and love. Sara steals a hundred bucks while babysitting? Take away her car keys, yell sense into her, and make her go watch the kids for free until she’s learned her lesson. College admissions certainly doesn’t need to know. Joey had a beer at his friend’s house and they got into a tussle? Call the friend’s parents, make Joey write an apology letter, and have him pass a sniff test every time he comes home. But he’s going to walk the stage at graduation. Sara and Joey get to have problems. They’re good kids just making dumb mistakes. Wouldn’t it be nice to have a court system that gives the same leeway to the kids and teenagers downtown, too?

So we promise ourselves that we’ve come up with a gentler, more humane system. One that understands. And we’ve made some big adjustments along the way. Because this system isn’t about punishing problems but recognizing them, we don’t let these kids and teenagers put their cases before juries, for example.8 This isn’t adversarial, a fight to keep the person from being branded a problem and dealt with accordingly. It’s collaborative. It’s for their own good.

Does the system deliver on that promise? Sometimes. Its cases are kept confidential. A kid or teenager goes through it without that paper trail the felon can’t escape. In nearly four years of working in a Georgia juvenile court, most of my cases ended with help that my adult clients could not reasonably expect from the system. Our community supervision officers were stretched thin, but they were not cynics. They fought hard. Our judge was serious about accountability, but she expected it from the system as much as she did from those who appeared before her. Most of my kids and teenagers disappeared quickly, coming to court a few times and then vanishing back into the anonymity of ordinariness. Their problems, at least those the law cared about, were few.

Then there were kids and teenagers whose experience justified the faith society has placed in the juvenile justice system. The teenager who received a few months’ respite at a good camp while his grandfather cleared the cockroaches out of the cabin they lived in. The kids who, after months of proceedings, finally opened up and admitted that they weren’t the instigators in the fist fights that had brought them to us—it was the abusive aunt who struck first. I will never forget the trust it took for them to acknowledge that they weren’t the problems, the adults in their lives were. Nor the new beginnings their sense of self received when the grownups in the court believed them.

I wish I could report that all is as well with the system as it often was in that small, tightknit, well-funded county, that America indeed does see kids and teenagers as having problems instead of being them. The evidence is mixed. Even at the abstract level, the system still reflects many of the judgments about wrongdoing that define the criminal legal system for adults. Consider language. Kids and teenagers with problems are “juvenile delinquents.” Have you ever referred to someone under eighteen as a “juvenile” if he or she is not a “delinquent”? I suppose “delinquent” is meant to be a euphemism, meant to point to things coming up short in a young person’s life. But it’s amazing how the gravity of society’s desire to define people as problems distorts it into an epithet anyway.

Turning to court procedures for juveniles, they are in large part about sifting out whether or not someone is a “runaway,” “ungovernable minor,” or so on. This part of the system reaches its peak when an adult criminal court is considering whether a kid or teenager can be condemned to someday die in prison under a sentence of life without the possibility of parole. There, in the Supreme Court’s phrasing, a judge should decide whether a young person is “irreparably corrupt.“9 So much so that it’s not worth even asking a parole board to take another look in twenty or thirty years.

For all our compassionate understanding that kids and teenagers have problems—for all our reluctance to admit that we can see them as problems in and of themselves—apparently there are things they can do that break our faith. The youngest child who managed to do that, Evan Miller of Alabama, was sentenced to life without the possibility of parole for a crime he committed at age 14.10 The state supreme court confirmed his fate just eight months ago.11

The Problems with Facilities Are Not Realistically Fixable

Are those who are not deemed broken beyond all hope of repair truly taught by juvenile justice facilities that they may have problems without being them? There are reasons for doubt. Here, the language actually points the other way. “YDC” in Georgia stands for “Youth Development Center” rather than “Youth Detention Center.” Yet it’s questionable what sort of positive development is encouraged by a barbed-wire set of cement blocks down in the swamp past the slaughterhouses and paper mills (as is the YDC in my home city of Augusta).

Then there’s the problem of implementation. Tell me any state or even any facility where outside experts are routinely confident that staffing is adequately recruited, screened, compensated, and supervised.12 This isn’t a matter of a few bad budget years or even a lot of stingy state governments. It’s the reality that controlling, sustaining, and reforming kids and teenagers in facilities that triple as homes, schools, and detention centers is extremely expensive. Especially when they are magnets drawing a disproportionate number of young people who are contending with the difficult, and expensive, problems of family brokenness, homelessness, substance abuse, and mental unwellness. And especially when officials setting public budgets have other problems—and far more socially popular ones—to address. Report after report demanding more money isn’t going to solve the problems that have afflicted juvenile justice facilities since the day they were first established.

That means they are going to keep making problems of their own. Combine personnel difficulties arising from budgets with the lure of extraordinary power over vulnerable people and abuse follows as a matter of course. The news of over a thousand cases alleging sexual and violent assault by officers in New Hampshire juvenile facilities, or of fight clubs overseen by dozens of Southern California juvenile detention officers, galls the conscience.13 Yet surprise should extend only to the depths of which human depravity can go—not the fact that these things happen in the facilities we have built.

It’s tempting to recount this reality and end with a call to shutter every last facility. Were there no good enough reason for them, they would be unjustifiable. There is an extent to which their rot is a necessary aspect of their very existence.

But there are kids and teenagers like Evan Miller. I do not believe that we can deem anyone at age 14 to be an irreparably corrupt problem. But he beat a man to death with a baseball bat and then burn his trailer.14 Evan had problems: his “stepfather physically abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten.“15 Yet they were not ones that could safely be wrestled with in the community, where young Evan’s decisions caused new problems for more people. Nor would it be justice for Evan not to be brought to account for his crimes. So facilities for confining kids and teenagers, even ones with heavy interlocking doors and concrete walls and barbed wire, have to continue to exist.

And so must scrutiny. These facilities must be used as a last resort. Juvenile courts need to have the mindset that if a young person’s problems would be handled seriously yet understandingly in the community by a responsible family, then that is the route they and their personnel must go, rather than relying on detention.

Systems and officials must be pressed again and again to treat personnel issues no less seriously than they would those in schools, hospitals, or any other setting with vulnerable people. That means adequate pay, background checks, supervision, and discipline. A system that cannot police itself will not be able to police those entrusted to it. And the last thing kids and teenagers inclined to disorder, violence, and crime need to see is that these things can be overlooked so long as the one committing them is powerful enough.

Rehabilitation must be the driving principle for facilities. Georgia now has an accredited statewide high school that awards degrees to suitable candidates in its juvenile facilities.16 The only thing that should be surprising about that is it being relatively recent news. Religious chaplaincy, psychological care, family repair wherever possible, substance abuse treatment, educational opportunity—these are not utopian aspirations for juvenile justice systems. They should be bare minimums.

These goals will not in fact be achieved, so here’s one more bare minimum, one that is achievable through mere policy design: accountability. Those who have been harmed by juvenile justice facilities and their personnel, those who are being harmed today, and those who will be harmed tomorrow no matter how impassioned the plea coming from this Commission—they deserve something. They deserve a way to have their complaints heard and the injustices they suffer recognized in a court of law. They deserve some measure of compensation for the problems they incur as a result of a system that treats them as problems. This Commission should lend its voice to the abolition of qualified immunity, the adoption of respondeat superior, and the reform of other legal doctrines that immunize officials from lawsuits seeking damages.17

Again, the last lesson in the world that young people should receive is the impression that they will be punished severely for their infractions while those in power will escape scrutiny for adult brutality.

I am not a psychologist. But I have seen the effects on mental health caused by the system treating people as being problems rather than having them. I hope a more understanding perspective can take hold but am realistic about human nature and constraints that are all but guaranteed to remain. Nonetheless, the harm can be limited and remedies afforded. Subjecting to facilities only those young people who need to be in them, insisting that the system strive to fulfill its promises in spite of difficulties, and opening up means of accountability for failures at least do something to recognize that kids and teenagers can have problems without being them.